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[Act 1996 No 123]
New South Wales
Justices Amendment (Committals)
Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Overview of Bill
The object of this Bill is to amend the Justices Act 1902:
* to ensure that prosecution witnesses in general (and not just those that
are victims of certain offences involving violence) cannot be required
to give oral evidence at committal proceedings except when special
reasons exist
* to require that the cross-examination of prosecution witnesses at
committal proceedings normally be confined to the subject matter that
formed the basis for a Justice's decision to permit the
cross-examination
* to restate (in more direct terms) the test under which a Justice decides
to commit a defendant for trial
* Amended in committee- table at end of volume.
see
Justices Amendment (Committals) Bill 1996 [Act 1996 No 123]
Explanatory note
* to make it clear that a Justice must not, at a committal hearing, exclude
otherwise admissible evidence on discretionary grounds
* to repeal an obsolete provision permitting a prosecutor or witnesses to
be bound over (or witnesses to be held in prison if they refuse to be
bound over) to ensure their attendance at a trial.
Outline of provisions
Clause l sets out the name (also called the short title) of the proposed Act.
Clause 2 provides that the proposed Act will commence on a day or days to
be appointed by proclamation.
Clause 3 is a formal provision that gives effect to the Schedule of
amendments to the Justices Act 1902.
Schedule 1 Amendments
Repeal of section 38
Schedule l [l] repeals section 38 because it is obsolete. Under section 38, a
Justice at committal proceedings can bind over the prosecutor and witnesses
in those proceedings (or, if witnesses refuse to be bound over, order them to
be held in prison) to ensure their attendance at the following trial. The
provision currently applies to witnesses even if they themselves have not
been charged with any offence.
Schedule 1 [2], [10] and [11] make consequential amendments.
Restating the committal test
Schedule 1 [3] amends section 41 to restate (in more direct terms) the test
under which a Justice decides whether to commit a defendant for trial.
At present, the Justice must form an opinion whether, having regard to all the
evidence before the Justice, a jury would not be likely to convict the
defendant of an indictable offence, and commits the defendant for trial if not
of that opinion (current section 41 (6)).
Under the proposed amendments, a Justice will decide, on the basis of the
evidence before the Justice, whether there is a reasonable prospect that a jury
would convict the defendant of an indictable offence.
Explanatory note page 2
Justices Amendment (Committals) Bill 1996 [Act 1996 No 123]
Explanatory note
Discretionary exclusion of evidence
Under proposed section 41 (8A) (as inserted by Schedule 1 [4]) and
section 48F (1) (as amended by Schedule 1 [8]), a Justice must not exclude
otherwise admissible evidence on discretionary grounds (such as unfairness).
Instead, the Justice is to leave those decisions for the trial Judge. At present,
it is not clear from the Justices Act 1902 to what extent a Justice at committal
proceedings is required to determine questions of discretionary exclusion.
Restricting the scope of cross-examination
Schedule 1 [5] amends section 41 to require that when, for special reasons,
the cross-examination of prosecution witnesses is permitted at committal
proceedings, the Justice must normally ensure that the cross-examination
does not stray from the subject matter on which the special reasons were
based (proposed section 4 1 (10)).
Restricting further the use of oral examination at committal
proceedings
The tendering of written statements as prosecution evidence at committal
proceedings is the normal procedure. However, under section 48E it is still
possible for a defendant to give notice that renders a written statement
inadmissible and so effectively force the appearance of the witness who made
the statement (or the withdrawal of the evidence of that witness). The
operation of section 48E is restricted by section 48EA in cases where the
witness is a victim of an offence involving violence.
It is also possible under section 48E for a Justice to order the appearance of a
witness if there are special reasons why it is in the interests of justice to do so
(even if the witness is a victim of a violent offence: section 48EA).
Schedule 1 [6] replaces section 48E (and Schedule 1 [7] omits
section 48EA) to extend the restriction so that no prosecution witness can be
required to attend unless there are special reasons that relate to the interests
of justice.
Schedule l [9] makes a consequential amendment.
Savings, transitional and ether provisions
Schedule 1 [12] amends the Second Schedule to the Justices Act 1902 to
insert a savings and transitional provision as a consequence of the above
Explanatory note page 3
Justices Amendment (Committals) Bill 1996 [Act 1996 No 123]
Explanatory note
amendments. This provision continues the application of the existing
provisions (so far as they relate to the attendance of prosecution witnesses at
committals) to any case in which an information was laid before that
amendment took effect.
However, the provision applies each of the amendments relating to other
matters to all cases immediately when the amendment takes effect.
Explanatory note page 4