17. Preliminary proceedings

17.1 Introduction

Section 62 of the Justices Act 1959 allows the accused or a Crown Law Officer to apply for an order that the witness named in the application gives evidence on oath in preliminary proceedings, prior to committal to the Supreme Court.

Section 331B(2) of the Criminal Code allows the accused or a Crown Law Officer to seek leave to apply for preliminary proceedings once the accused has been committed to the Supreme Court, where special circumstances exist (see s331B(2A)).

A judge or magistrate may only grant an application, firstly, if the application identifies the matter in which a witness is to be questioned, specifies its relevance and specifies why cross-examination or examination is justified and, secondly, if the court is satisfied that it is necessary in the interests of justice.

Generally, if a witness is a material witness and the application is limited to cross-examination of evidence relevant to an issue in a forthcoming trial, it will be in the interests of justice to order the application to ensure a fair trial (see Barton v R 147 CLR 75). In some circumstances, particularly where the witness has or will be cross-examined on a voir dire at trial, it may not be in the interests of justice to have such a preliminary examination (see Tasmania v Martin [2010] TASSC 51). Further, where a witness has to travel some distance, i.e. from interstate or overseas, or whose existence or availability only became known shortly before trial, it may be more efficient and convenient to depose his or her evidence before the trial judge by way of a Basha inquiry (see Basha v R (1989) 39 A Crim R 377).

It is important that witnesses do not give evidence more often than is necessary for the interests of justice to be served. Therefore, the prosecutor with conduct of the case should scrutinise an application, firstly, to determine whether the witness is a material witness and, secondly, to ensure that any order limits cross-examination to relevant admissible evidence.

Where a material witness will not co-operate or speak to a prosecutor, he or she must consider whether to approach a Crown Law Officer to consider making a preliminary proceedings application. A preliminary proceedings application should be made to determine what evidence a witness may give on a particular matter and whether the evidence will be favourable or unfavourable. Obtaining such evidence may be necessary to determine whether there is sufficient evidence to raise an indictment or whether a witness should be called at any forthcoming trial.

17.2 Affected persons

If a witness is an “affected person” within the meaning of s61(2) of the Justices Act 1959, the court can only grant an application to require the witness to give evidence on oath at a preliminary proceedings in exceptional circumstances.

Section 3(1) of the Justices Act 1959 defines an “affected person” to include a complainant in respect of most, if not all, sexual offences defined in the Criminal Code.

For exceptional circumstances to exist there must be something about the case that departs from that of an ordinary, common or usual case. A person is an affected person irrespective of whether there is a “complaint for a non-sexual crime” (see Farmer v Lockley [203] 12 Tas R 244). In that case, the principal judgment was written by Underwood J. In defining special circumstances, the following propositions emerge from his Honour’s judgment (as modified to current provisions):

• It is very common that a complaint alleges one or more sexual crimes referred to in the definition of “affected person” as well as other crimes such as assault arising out of the same facts. The protection offered by Parliament to a complainant who is an affected person under one matter of complaint is not lost because a non-sexual crime is properly joined in the same complaint. Thus, no order should be made on any count unless exceptional circumstances exist.
• It must be borne in mind that ss 331B and 62 speak not only of the need for the existence of special circumstances, but there must be special circumstances that justify an affected person being examined.
• What are exceptional circumstances cannot be defined in advance. In each case there should be examination of the circumstances that the applicant contends are exceptional to determine whether, individually or collectively, they justify the making of the order for examination.
• The common theme of legislative provisions of this nature is that in the case of a sexual crime, there is to be no examination of an affected person unless there is something special or unusual about the case to warrant that course. The term “exceptional”, now used in the legislation, is a term which, to me, emphasises the extent to which a case must depart from an ordinary, common or usual case.
• The object of such provisions is to avoid a complainant being cross-examined twice unless justified.
• Something more than the loss of the ordinary advantage of cross-examining the witness prior to trial should be shown. Cross-examination is not justified simply in order to obtain material to discredit a witness at trial and will be permitted only if there is a serious risk of an unfair trial if it is not: Kant v DPP (1994) 34 NSWLR 216 at 223. See also KT v DPP [2009] NSWSC 1126 which adopted the statement of the Court of Appeal in DPP v Losurdo (1998) 44 NSWLR 618 at 627.

Prosecutors must scrutinise a preliminary proceedings application for examination of an affected person with great care and such applications must be opposed unless the application clearly demonstrates exceptional circumstances. Approval must be given by a member of the Committee before consenting to an application. Even where an application demonstrates exceptional circumstances, it is essential that the prosecutor with conduct of the case makes submission to the judge to limit the examination to only those matters that are exceptional.

A prosecutor conducting a preliminary proceeding must object to any examination of an affected person which is outside the terms of the preliminary proceedings order (s65(2) of the Justices Act 1959).

If an affected person is examined at preliminary proceedings, they must give their evidence by audio-visual link unless the witness requests otherwise, or an order has been made under s7 of the Evidence (Children and Special Witnesses) Act 2001.

17.3 Magistrates or justices of the peace

Practice Direction 1 of 2021 issued by the Chief Magistrate states that preliminary proceedings will be heard by justices of the peace unless otherwise ordered by a magistrate.

Practice Direction 2 of 2016 issued by Chief Justice states:

In cases involving homicide, sexual matters, or Commonwealth offences, preliminary proceedings will be heard by justices of the peace if the parties agree to that course, or if the Court so orders. If the parties do not agree to that course, and the Court does not so order, then the preliminary proceedings in such cases will be dealt with by magistrates.

Where possible, preliminary proceedings should be held by justices of the peace rather than magistrates. This enables preliminary proceedings to be expedited, as justices are more readily available and it frees magistrates to deal with other matters. However, no consent should be given for a justice to conduct a preliminary proceedings where the witness is an affected person, is severely traumatised or whose evidence will be legally contentious. However, in cases where there are other witnesses who do not fall into the former category, it is appropriate to request that those witnesses be examined by a justice.

17.4 Time to consider an application

In the Magistrates Court, counsel intending to seek a preliminary proceedings order are to file and serve an application not less than 7 days prior to the preliminary proceedings application listing (see Practice Direction 1 of 2021 of the Chief Magistrate).

In the Supreme Court, an application may be made at any appearance if the applicant is granted leave of the court to apply as a result of one or more of the special circumstances listed in s331B(2A)(a)-(e).

Where an application has not been served within the required time and more time is needed to examine the application, an adjournment should be sought.

Similarly, if the application does not provide sufficient particulars, more should be sought.

17.5 Leave

In considering whether leave or not leave should be granted, it should be noted that:

• The interests of justice do not solely equate with the interests of an accused person. It also includes the interests of witnesses and that the business of the court is dealt with as expeditiously as possible.
• An accused is bound by the decisions of his or her counsel. It is not sufficient to rely on the fact that there has been a change of counsel to someone with a different view as to whether there should be preliminary proceedings.

17.6 Conduct of preliminary proceedings

Prosecutors should ensure that the witness’s statement is tendered at a preliminary proceedings in order to ensure that if that witness becomes unavailable the statement will be admitted as evidence at the trial (s65(3) of the Evidence Act 2001). Originally this was one of the major purposes of committal proceedings (see Barton v R [1980] 147 CLR 75 at 113).

Prosecutors should ensure that preliminary proceedings are not adjourned without good reason. Where there is more than one defendant, the prosecutor with conduct of the case should ensure there is only one preliminary proceedings involving all co-defendants in order to lessen delay and avoid witnesses having to give evidence more than once.