Two ancient and related rights are available to individuals accused of crime in common law jurisdictions. The first is that an accused has the right to confront their accuser and ask them questions. And the second is that they should not be committed to stand trial unless a Magistrate finds there is sufficient evidence for a properly instructed jury to possibly find an accused guilty.
But these ancient rights are under attack from a Victorian Government that believes the protections afforded by these rights are merely unimportant relics from a forgotten age that are unrightfully used by criminals to avoid punishment for the terrible crimes they subject their victims to.
The Victorian government has recently passed legislation that limits the circumstances in which victims can be cross-examined at the Committal stage of proceeding in family violence, sexual offence and stalking cases.
This is unfortunate, as it is a tactical move that hurts the defence at trial. It hurts the defence in two ways. Firstly, a trial may not occur at all if the victim gives evidence that demonstrates the charge is not justified. Secondly, the trial preparation misses out on the key insights given by the cross examination of the victim at committal.
Such changes should not be made lightly. They are the equivalent to changing the rules of chess such that white has to play without a queen while black continues to hold one. It requires an incredibly low ability to reason fairly to make such a change, and the Victorian government should be ashamed of themselves.
One may find it worthwhile to examine the history of the committal procedure in common law jurisdictions. The committal procedure can be traced back to English common law in the Middle Ages. It initially served as a check on executive power, requiring that evidence be reviewed before a defendant was sent to trial. The primary purpose was to prevent the Crown from arbitrarily using the court process against their subjects.
It seems that the executive these days finds that too constraining.
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