NCJ Number
54986
Date Published
1978
Length
127 pages
Annotation
AUSTRALIAN LEGISLATION AND CASE LAW GOVERNING COMMITTAL FOR TRIAL IS THE PRIMARY FOCUS OF THIS STUDY, AND PROCEDURES ARE OUTLINED FOR ENGLAND, NEW ZEALAND, THE UNITED STATES, CANADA, AND SCOTLAND.
Abstract
THERE IS NO SINGLE NATIONWIDE SYSTEM GOVERNING COMMITTAL FOR TRIAL IN AUSTRALIA. ACTS AND ORDINANCES IN FORCE IN THE SIX STATES AND TWO TERRITORIES OF AUSTRALIA DETERMINE PROCEDURES FOR COMMITTAL TO TRIAL IN EACH OF THESE JURISDICTIONS. THESE PROCEDURES ARE EXAMINED FOR EACH JURISDICTION. THIS IS FOLLOWED BY AN ANALYSIS OF THE OBJECTIVES OF COMMITTAL PROCEDURES AND A CONSIDERATION OF THE CRITERIA USED BY AN EXAMINING MAGISTRATE. THE POSSIBILITY OF A HIGHER COURT EXERCISING SUPERVISORY POWERS OVER THE CONDUCT AND OUTCOME OF A COMMITTAL HEARING HAS ATTRACTED SIGNIFICANT INTEREST IN A NUMBER OF STATES, SO THE CASE LAW ON THIS SUBJECT IS TREATED. A BRIEF DESCRIPTION OF THE ROLE OF THE ATTORNEY-GENERAL IN PROCEDURES FOR COMMITTAL TO TRIAL IS ALSO INCLUDED. FOLLOWING AN OUTLINE OF TRIAL COMMITTAL PROCEDURES IN ENGLAND, NEW ZEALAND, THE UNITED STATES, CANADA, AND SCOTLAND, SIGNIFICANT ASPECTS OF COMMITTAL PROCEEDINGS ARE NOTED, AND A MODEL IS DESCRIBED WHICH SEEMS TO OFFER EFFICIENCY WITHOUT SACRIFICING THE BASIC OBJECTIVES FOR THESE PROCEEDINGS. A STRIKING FEATURE OF TRIAL COMMITTAL PROCEDURES IN AUSTRALIA IS THAT THEY ARE NOT BINDING, BECAUSE THE ATTORNEY-GENERAL CAN EITHER REFUSE OR ACCEPT THE RECOMMENDATION OF A COMMITTING MAGISTRATE ABOUT GOING TO TRIAL. ABOLISHING THE ATTORNEY-GENERAL'S POWER TO FILE AN EX OFFICIO INDICTMENT IS SUGGESTED, IN ORDER TO INCREASE THE SIGNIFICANCE OF THE COMMITTAL PROCEDURES. THE SIGNIFICANCE OF COMMITTAL PROCEDURES WOULD ALSO BE INCREASED BY TRANSFORMING THE COMMITTAL DECISION REACHED BY A MAGISTRATE INTO A FINAL DETERMINATION. A TABLE OF CASES IS PROVIDED, ALONG WITH FOOTNOTES. (RCB)