2010

LEGISLATIVE ASSEMBLY OF THE 
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

                                      				SERIAL NO. 106   

EXPLANATORY STATEMENT

JUSTICE LEGISLATION AMENDMENT (COMMITTALS REFORM) BILL 2010

GENERAL OUTLINE

The Bill amends the Justices Act and the Youth Justice Act to reform the way in which committal proceedings are run.  In a committal hearing a Justice determines whether a person, charged with an indictable (serious) offence, should be sent to stand trial in the Supreme Court.  The primary function of a committal is to screen charges to ensure a defendant does not stand trial unless there is a sufficient case against him or her.  

A number of problems with the current procedure for committals in the NT have been identified.  The Bill aims to address these problems by removing the unfettered right of the defendant to cross-examine witnesses.  The principle purpose of the reforms is to streamline committal proceedings to ensure matters run more efficiently. 

It is proposed that committals proceed as paper or hand-up committals, with witnesses only to be cross-examined if the prosecution consents or leave is given by the court. 

In situations where a youth and an adult are alleged to have committed offences together, the Bill provides for the committal proceedings to be heard together with the provisions of the Youth Justice Act applying to the youth where necessary.

The term used for a committal proceeding is ‘preliminary examination’.

The Bill also makes minor amendments to the Justices Act which either updates the language used or corrects minor drafting errors.

Note: References in this explanatory statement to “Vic” are references to the Criminal Procedure Act 2009 (Vic).

NOTES ON CLAUSES

Part 1 – Preliminary matters

Clause 1.	Short title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Justice Legislation Amendment (Committals Reform) Act 2010.

Clause 2.	Commencement

The Act will commence on a date set by the Administrator by Gazette notice.

Part 2 – Amendment of Justices Act

Clause 3.	Act amended

This Part amends the Justices Act.

Clause 4.	Amendment of section 4 (Interpretation)

This clause updates and/or refers to certain words and new terms used in the new sections.  These words and terms are defined in the sections in which they are first used.

Clause 5.	New Part V, Division 1A

This clause inserts a new Part V, Division 1A before Division 1 in Part V.  This Division consists of a definition section (new section 100).

100.		Definitions

This provision defines certain words and phrases used in Part V.  
Key definitions are:

“committal date” –.this is the date that is set for a preliminary examination to begin.

“handed-up witness statement” – this is a statement of a witness which is part of the committal brief provided to the court and the defendant or defendant’s solicitor. 

Clause 6.	Repeal of section 100A

This clause repeals section 100A of the Justices Act, which is the current definition section for Part V.  The definitions in section 100A are now included in the new section 100.

Clause 7.	Repeal and substitution of sections 105AA to 106

This clause repeals the current sections 105AA to 106 and replaces them with new sections 105A to 105L.

105A.	Preliminary examination to be conducted

New section 105A provides that where a person has been charged with an indictable offence a preliminary examination must be conducted unless the matter proceeds by way of an ex officio indictment presented in the Supreme Court or is dealt with summarily in the Court of 
Summary Jurisdiction.

105B.	Youth and adult charged – joint preliminary examination

New section 105B provides that where a youth and an adult are charged with offences which arise out of the same incident their preliminary examinations can be heard together.  The provision stipulates the Magistrate must deal with the youth as provided in the Youth Justice Act and the adult under the Justices Act.  This is to ensure any special protection provided to youths under the Youth Justice Act continues to apply.  The provision allows the Magistrate to separate the proceedings at any stage if it is in the interests of justice to do so.

The benefit of being able to have the preliminary examinations heard together, in appropriate cases, is that it avoids two essentially identical proceedings having to be run, thereby decreasing cost, consumption of resources and stress on witnesses. 

105C.	Prosecutor to serve committal brief

New section 105C requires the prosecutor to serve a committal brief on the defendant or the defendant’s legal representative at least 28 days before the committal date, unless a Justice fixes a different period for service or the defendant agrees to a different period.  The prosecutor must provide a copy of the committal brief to the court as soon as practicable after it has been served on the defendant.

105D.	Content of committal brief

New section 105D outlines the documents which must be part of the committal brief.  Most of the documents are documents which are to be provided to the defendant under the current sections 105A and 105B.  

New section 105D(1)(d) describes the persons whose statements the prosecutor proposes to tender as evidence at the preliminary examination as “listed witnesses”. Any other documents or things documents the prosecutor intends to tender as evidence at the preliminary examination are described as “listed exhibits”. 

There is a new notice which must be provided in the brief which explains the purpose and nature of a preliminary examination, that the prosecutor’s evidence will include the written or recorded statements of the listed witnesses and any listed exhibits and the defendant’s rights and obligations in relation to cross-examination of prosecution witnesses.   The notice will be in the form prescribed by the Rules. 

In addition, new section 105D stipulates that where it is not practicable for the prosecutor to provide the required document with the brief, the prosecutor must provide the document to the defendant as soon as it is practicable to do so.  Once these documents have been provided to the defendant or the defendant’s legal representative, they become part of the committal brief.

105E.	Continuing obligation to update committal brief

New section 105E applies if, after the committal brief is served, there is a change in the prosecution witnesses or the documents or things the prosecutor proposes to tender as evidence.  In this situation, the prosecutor must update the list initially provided in the brief or prepare a supplementary list and serve this on the defendant or defendant’s solicitor with the documents required for each witness or thing by new section 105D.  Once served, the new documents become part of the committal brief. 

105F.	Requirements for witness statements and exhibits

New section 105F provides that for each witness on whose evidence the prosecution intends to rely, the committal brief must contain a copy of the witness’ written statement, or if the statement has been recorded, a transcript of the recording.  If the witness is an adult the statement must also contain a statutory declaration by the witness declaring the statement to be true. 

New sub-sections 105F(2) and 105F(3) outline the form the written witness statement must take.  These requirements are the same as the requirements in current section 105B.

New sub-section 105F(4) outlines the requirements regarding proposed exhibits.  These requirements are the same as the requirements contained in current section 105A.

New sub-section 105F(5) provides that the prosecutor must give the defendant and the defendant’s legal representative reasonable opportunity before the committal date to listen to and/or view any recorded statements of listed witnesses and inspect any listed exhibits.  These requirements are the same as contained in current sub-section 105A(7).

105G.	Defendant may apply for leave to cross-examine witness

New section 105G provides that the defendant may ask the justice for leave to question a prosecution witness.  The defendant needs to seek this leave at least 14 days before the committal date unless there is a good reason why the application was not made in time and it would be unjust not to allow the defendant to apply.  

105H.	Leave to cross – examine witness [Vic, s.124]

New section 105H is modelled on section 124 of the Criminal Procedure Act 2009 (Vic).  It provides that a witness can only be cross-examined when leave has been granted.  If the prosecutor consents to leave being granted the Justice must grant leave unless he or she considers it would not be in the interests of justice to do so.  If the prosecutor does not consent to leave being granted, the Justice must be satisfied that the defendant has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue.  The Justice must also be satisfied that that cross examination is justified.  New sub-section 105H(4) sets out a list of factors the justice must take into account in deciding whether leave should be granted.  There are additional factors, detailed in new 
sub-section 105H(5), that a Justice must have regard to if the witness is a child.  These additional factors recognise that different considerations are required to be taken into account when children are involved in criminal proceedings.

105J.	Prosecution evidence [Vic, s.130]

New section 105J provides that a written statement the prosecutor is intending to rely on at the preliminary examination must be admitted as the prosecution evidence as if the witness had given evidence verbally.  The Justice can refuse to accept the evidence if it does not comply with the rules of evidence or if the requirements of new section 105D have not been followed.  

New sub-section 105J(6) provides that a Justice may give leave to the prosecutor for a listed witness to give evidence which supplements their written statement if it is in the interests of justice.  New sub-section 105J(7) provides that a Justice may grant leave to the prosecutor for a person who is not a listed witness to give evidence if it is in the interests of justice.  This makes allowance for evidence that is brought to the attention of the prosecutor when it is too late to include a listed witness statement in the committal brief.

New sub-section 105J(9) provides that if leave is granted, the witness must attend at the required time and the defendant may apply for leave to cross-examine the witness.  

105K.	Cross-examination of witness [Vic s.130]

New section 105K outlines the boundaries of the questioning allowed if leave is granted to the defendant to cross-examine a prosecution witness.  

The prosecution evidence is restricted to the witness identifying him or herself and attesting that their handed-up witness statement is true.  The defendant is not restricted to questioning only on the issue for which leave to question was granted.  However, the Justice may disallow any question asked by the defendant if the question is not relevant to an identifiable issue or if the question is not justified.

105L.	Protected witness cannot be called or examined

New section 105L ensures that the categories of witnesses currently protected under the Justices Act remain protected by providing that certain witnesses cannot give oral evidence at a preliminary examination.  Children cannot give evidence if one of the offences the defendant has been charged with is a sexual offence or a serious violence offence.  The victim of an alleged sexual offence is also prohibited from giving oral evidence.  
“Sexual offence” is defined in the Sexual Offences (Evidence and Procedure) Act as an indictable offence involving: 
(a) sexual intercourse or sexual penetration; or 
(b) a sexual relationship; or 
(c) sexual abuse; or 
(d) indecent touching or an indecent assault; or 
(e) any other indecent act directed against a person or committed in the presence of a child; or 
(f)  the making, collection, exhibition or display of an indecent object or indecent material; or 
(g) sexual servitude or any other form of sexual exploitation; or 
(h) an attempt to commit, an act of procuring, or any other act preparatory to the commission of any of the above. 

“Serious violence offence” is defined in section 4 of the Justices Act and means an offence against any of the following provisions of the Criminal Code that is punishable by imprisonment for 5 or more years: 
(a) Part V, Division 2 (Child abuse material and indecent articles, offences against morality, Offences against public health and Contamination of goods); 
(b) Part VI, Divisions 3 to 6A (Homicide, suicide, concealment of birth, abortion; Recklessly endangering life and serious harm, negligently causing serious harm and death or serious harm involving motor vehicles; Miscellaneous offences against the person; Female genital mutilation; Assaults; Offences against liberty: kidnapping: abduction; sexual servitude and deceptive recruiting for sexual services); 
(c) section 211 or 212 (Robbery; Assault with intent to steal); or
(d) another provision prescribed by the Regulations. 
No provisions have been prescribed by the Regulations. 

Clause 8.	Amendment of section 109 (Procedure on completion of the evidence for the prosecution)

Clause 8 makes minor amendments to section 109 including up-dating the terms used in sub-section 109(3)(b) to make it consistent with section 134.

Clause 9.	Repeal and substitution of sections 110 and 111

This clause repeals sections 110 and 111 of the Justices Act and replaces them with a new section 110.  

110.		Defendant may give evidence, call witnesses [Vic s.144]

The current section 110 requires the Justice to read a specific statement to the defendant which asks whether the defendant wishes to give evidence or call witnesses to give evidence on his/her behalf.  
The wording of the statement is complex and difficult to understand.  This is particularly an issue for defendants whose first language is not English, particularly Indigenous defendants.  The statement is also difficult to interpret into Indigenous languages.  

New sub-section 110(1) outlines the matters a Justice must explain to the defendant.  They are the same as what is contained in the statement the Justice is required to read under the current section 110.  However, the Justice will be able to explain these matters in a simpler and more intelligible manner.

New sub-section 110(2) provides that a Justice does not have to give the explanation if the defendant is represented by a legal practitioner and the Justice is satisfied the matters have been adequately explained to the defendant.  

New sub-section 110(3) stipulates the Justice must give the defendant the opportunity to give evidence and call witnesses. It replicates the current section 111.

New sub-sections 110(4) and 110(6) are included for consistency with the approach taken in the new provisions relating to prosecution witnesses.

New sub-section 110(5) states that if the defendant is committed for trial any evidence given by the defendant at the preliminary examination may be given in evidence at trial.  This reflects the current sub-section 110(2).

Clause 10.	New section 112A
This clause inserts a new section 112A after section 112.

112A.	Conduct of preliminary examination generally

New section 112A is a procedural provision which outlines the power of a Justice to ensure the preliminary examination proceeds smoothly.

Clause 11.	Amendment of section 113 (Power to remand defendant from time to time).

This is a procedural provision which simplifies the language used in section 113.

Clause 12.	Amendment of section 116 (Transmission of documents to Supreme Court upon committal for trial)

This clause amends the language used in section 116 to ensure consistency in the Bill.  Section 116 is a procedural provision.

Clause 13.	Amendment of section 117 (Binding witnesses by recognisances)

This clause amends the language used in section 117 to ensure consistency in the Bill.

Clause 14.	Amendment of section 122A (Serious or difficult matters not to be dealt with summarily)

Clause 14(2) amends section 122A to clearly state that the Court of Summary Jurisdiction may discontinue the summary proceedings and continue the proceedings as a preliminary examination. 

Clause 14(3) inserts a new sub-section into section 122A.  This provision outlines the way in which a Magistrate in the Court of 
Summary Jurisdiction may conduct a preliminary examination in circumstances where proceedings have commenced summarily.

Clause 15.	Amendment of section 131 (Transmission of documents to Supreme Court and evidentiary value)

This clause amends the language used in section 131 to ensure consistency in the Bill.  Section 131 is a procedural provision.

Clause 16.	Amendment of section 134 (Defendant may be asked to plead to the charge)

This clause modernises the language used in section 134.  Section 134 provides that the Justice may ask the defendant whether he or she wishes to plead to the charge after all the evidence offered by the prosecution has been heard.

Clause 17.	Amendment of section 139 (Transmission of documents to Supreme Court)

This clause amends section 139 of the Justices Act to ensure consistency in the Bill.  Section 139 is a procedural provision.

Clause 18.	Repeal and substitution of section 152

This clause repeals section 152 and replaces it with a new section 152.

The new section 152 is a redrafted version of the current section 152 to ensure consistency in the Bill.  It outlines the procedure which is to occur where a defendant is committed for trial and a witness whose evidence was admitted at the preliminary examination is dead or ill.

Clause 19.	Amendment of section 153 (Justice may take deposition of person dangerously ill and unable to attend preliminary examination)

This clause amends section 153 of the Justices Act to ensure consistency with the Bill.  It deals with the procedure a Justice may follow where a person who is able and willing to provide material information relating to any indictable offence is dangerously ill and not likely to recover from the illness.

Clause 19(7) inserts a new sub-section into section 153 which defines an oral witness as a person for whom leave to give oral evidence has been given or someone whom the defendant desires to call as a witness.

Clause 20.	Amendment of section 175 (Transmission of copy of depositions to Supreme Court on appeal)

This clause amends section 175 of the Justices Act to ensure consistency with the Bill.  Section 175 is a procedural provision.

Clause 21.	Amendment of section 201A (Rules and procedures)

Section 201A is a provision which outlines the power of the 
Chief Magistrate to make rules and practice directions regarding court practice, procedure and enforcement. 

This clause amends section 201A so it is clear that the Chief Magistrate has the power to make rules and practice directions in relation to preliminary examinations including facilitating joint preliminary examinations under the Justices Act and Youth Justice Act.  This is required as it currently not clear that the Chief Magistrate has the power to make rules and practice directions to ensure that pre-committal procedures (eg exchange of documents between the prosecutor and defendant) occur within the required timeframe.

Clause 22.	New Part VIII

Clause 22 inserts a new Part VIII after section 203. This Part consists of a new section 204.

Part VIII	Transitional matters for Justice Legislation Amendment (Committals Reform) Act 2010
204.	Application of amendments 

The new section 204 provides that the current provisions apply to charges laid before the amendments in the Bill come into operation.

Clause 23.	Further amendments

This clause gives effect to the Schedule of the Bill which lists minor consequential amendments, including amendments to reflect the current drafting style.

Part 3	Amendment of Youth Justice Act

Clause 24.	Act amended 

This Part amends the Youth Justice Act.

Clause 25.	Amendment of section 5 (Interpretation)

This clause inserts a definition of ‘Court of Summary Jurisdiction’ into the Youth Justice Act to make it clear that it includes a Justice conducting a preliminary examination.

Clause 26.	New section 56A

56A.	Youth and adult charged – joint preliminary examination

This clause inserts a new section 56A into the Youth Justice Act which essentially mirrors the new section s105B of the Justices Act 
(see Clause 7), enabling, in effect, a joint preliminary examination in appropriate cases where a youth and an adult are charged with offences arising out of the same incident. 

Schedule 	Further amendments to the Justices Act
The Schedule lists minor consequential amendments to the Justices Act, including amendments which correct punctuation and change spelling from English(US) to English (Aus).