Page 3004 - Week 08 - Thursday, 7 August 2008
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This significant change to the committal process recognises the administrative nature of the committal hearing and the reality that many committal hearings already proceed on the papers. It brings the ACT into line with the majority of Australian jurisdictions that have made paper committals mandatory.
The next step in the raft of reforms to the committal process is the requirement for the defendant charged with offences that are capable of being heard by a magistrate to decide at an early stage which jurisdiction the charges are going to be heard in. This will mean that witnesses have certainty about the number of times that they will be giving evidence. This step will reduce delays and uncertainty for both defendants and complainants about the path they have chosen to take and will reduce the opportunities for defendants to forum shop for tactical reasons. It will also better use the time of the courts so that matters listed for hearing will proceed when scheduled rather leaving court time unused due to late transfer of matters to another court.
The bill also changes the threshold on which matters become indictable from offences that have a penalty of imprisonment of more than one year to those that have a penalty of more than two years imprisonment. This reform recognises the professionalism of our Magistrates Court and their ability to hear and determine matters that carry these penalties.
There are two offences, aggravated robbery and aggravated burglary, that can currently only be dealt with in the Supreme Court as they carry maximum penalties of 20 years imprisonment. The bill amends the legislation so that the Magistrates Court can deal with minor examples of these offences if both the defendant and the prosecution consent and the Magistrates Court is satisfied that the matter is one that is appropriate for summary jurisdiction. The requirement for the prosecution’s agreement to summary jurisdiction provides a higher level of safeguard for these potentially serious offences to ensure that it is only the more minor manifestations of these offences that are handled by the Magistrates Court.
In further recognition of the ability of the Magistrates Court to deal with a range of matters, the bill increases the sentencing power of the court so that a magistrate dealing with an indictable matter can impose a sentence of up to five years imprisonment or a fine of $15,000 or both, rather than the limit of two years or a fine of $5,000 or both that is currently available. This increase complements the increase in the range of matters that the Magistrates Court can hear and determine summarily and the addition of the two serious offences to the number of indictable charges that the Magistrates Court can deal with summarily.
The increase in the range of matters that can only be dealt with in the Magistrates Court has highlighted a human rights issue in the Magistrates Court Act 1930. That act currently allows for summary matters to be heard in the absence of the defendant if the defendant has been served with a summons. However, the provisions for service of a summons did not require the defendant to be personally served with a summons; so there could be cases where a defendant knows nothing about a case that is being heard in the defendant’s absence. This clearly violates section 22 of the Human Rights Act 2002 and the right to be tried in person. Of course, there are also cases where a defendant may have been personally served with a summons but still does not understand the effect of not attending the court to have the matter heard.
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