Committals: Issues Paper (html)

Provision for paper committal

By ‘straight hand-up brief’ or election of the accused at any time after service of the hand-up brief.

‘Hand up’ committals without witness examination or cross-examination are the rule: charges and issues are set out in a prosecution brief; witness statements are tendered as evidence.

‘Hand up’ committals without witness examination or cross-examination are possible: charges and issues are set out in a prosecution brief; witness statements can be tendered as evidence.

‘Hand up’ committals without witness examination or cross-examination possible: the prosecution must serve a committal brief; written statements or recorded evidence of prosecution witnesses must be admitted as evidence-in-chief.

Provision for paper committal

‘Registry committals’ are conducted on the papers by clerks of the court with the consent of the parties and subject to certain procedural requirements;

‘Hand up committals’ without witness examination or cross-examination are conducted on the papers by the court with the consent of the parties.

At the election of the accused if the accused pleads guilty or concedes there is a case to answer.

Automatic committal to the Supreme Court if the accused pleads not guilty to an indictable offence.

With the consent of the parties. No attendance necessary for either party.

Magistrate required to make a decision to commit to trial

Yes—to determine if the evidence is of sufficient weight to support a conviction for an indictable office.

Yes—if the parties do not consent to committal, then the Magistrate assesses the evidence to determine if there is a reasonable prospect that the accused will be found guilty of an indictable offence.

No

Yes—if the Magistrate is satisfied after assessment of the evidence it is sufficient to put the accused on trial for an indictable offence.

Magistrate required to make a decision to commit to trial

No test for committal for registry or ‘hand up committals’ without witness examination or cross-examination. In other cases, the court must assess the evidence and commit on the basis if the evidence is sufficient to establish a prima facie case to put the accused on trial for an indictable offence.

Yes—if the accused does not concede committal then the Magistrate assesses the evidence to determine if it is sufficient to put the accused on trial for an indictable offence, that is, if accepted, would the evidence prove every element of the offence.

No

No

Case conference

A magistrate may direct the accused and the prosecution to participate in a committal case conference, usually held on the day of the committal mention.

Not prescribed.

If the accused is legally represented.

Not prescribed.

Case conference

The parties must engage in a case conference to discuss the possibility of narrowing the issues in dispute and to negotiate charges prior to the first court listing.

After committal to trial.

After committal to trial.

At the election of the parties.

Disclosure obligations

Police to serve hand-up brief on an accused at least 42 days prior to committal mention. Police to provide the DPP with a copy within 7 days after service on the accused.

If the accused indicates an intention to plead guilty before the hand-up brief is served, police may serve a plea brief.

Police have an ongoing duty to disclose any further relevant material.

Police to provide brief of evidence to the prosecution within 6 weeks of plea being entered; prosecution to provide brief of evidence to accused within 8 weeks of plea. Prosecution must file and serve witness statements at least 28 days before committal hearing.

Police to provide simplified brief of evidence to prosecution.

A magistrate orders service of the brief of evidence on the accused.

A brief of evidence must be served by the prosecution on the accused 28 days before committal and updated as necessary.

Disclosure obligations

An accused may request copies of statements or exhibits prior to the case conference and first court listing. Where reasonably practicable, the prosecution must comply within 14 days.

If an accused does not consent to being committed the prosecution must provide a brief of evidence at least 14 days prior to the date set for the hearing of evidence.

The prosecution is under an ongoing obligation of disclosure.

Police serve and file a preliminary brief prior to an accused’s first appearance. If there is to be an ‘answer charge’ hearing, the prosecution must file a committal brief at least four weeks prior to the hearing and serve it on the accused as soon as practicable.

If the matter is committed for trial, disclosure obligations are ongoing.

Within 4 weeks after the first hearing, a brief must be served on the accused, containing the complaint:

– a copy of the defendant’s transcript of interview (if conducted)

– all witness statements; and

– a summary of the material facts relevant to the charge.

Police have an ongoing duty to disclose any further relevant material.

All relevant evidence to be disclosed early in proceedings and prior to a ‘disclosure

/committal hearing’.

Police have an ongoing duty to disclose any further relevant material.

Provision for prosecution witnesses to be called to give evidence in person

If the Magistrates’ Court grants leave to do so ‘in the interests of justice’.

Where an accused has been granted leave to cross-examine a witness, in exceptional circumstances, the Magistrates’ Court may grant leave for the witness to give the whole of his or her evidence-in-chief orally.

On application by the prosecution, and only if necessary ‘in the interests of justice’

With the consent of the parties or if the court finds there are substantial reasons for attendance in the interests of justice, or in some instances, special reasons.

If the court is satisfied it is in the interests of justice.

Provision for prosecution witnesses to be called to give evidence in person

On application of the accused, and with the consent of the parties or if the court is satisfied there are substantial reasons why, in the interests of justice, the witness should be called.

If the court is satisfied there are ‘special reasons’ for calling the witness.

Upon order of the Supreme Court if satisfied it is in the interests of justice and the accused or prosecution has:

– identified a matter for which a witness is to be questioned;

– specified why the evidence of the witness is relevant to the matter; and

– specified why cross-examination, or examination, of the witness is justified.

On application by the prosecution but only in relation to a witness who has refused to make a statement to the police or the prosecutor.

Provision for prosecution witnesses to be cross-examined

On application by the accused and with leave of the court and only if:

– the accused identifies an issue to which the proposed questioning relates

– the accused provides a reason why the evidence of the witness is relevant to that issue; and

– cross-examination on that issue is justified.

Only if the court is satisfied it is necessary ‘in the interests of justice’ and the party seeking to cross-examine has:

– identified an issue to which the questioning relates

– explained why the evidence of the witness is relevant to the issue

– shown why the evidence disclosed by the prosecution does not address the issue; and

– identified the purpose and general nature of the questions to be put.

With the consent of the parties or if the court finds there are substantial reasons for attendance in the interests of justice, or, for victims of violent offences, special reasons.

With the consent of the prosecution, unless:

– the witnesses are ‘protected’; and

– the court is otherwise satisfied that it is not in the interests of justice.

If the prosecution does not consent, then only if the court is satisfied the accused has identified an issue that the proposed cross-examination relates to, and has provided a reason why the evidence is relevant to the issue, and the cross-examination is justified.

Provision for prosecution witnesses to be cross-examined in person

As above.

If the court is satisfied there are ‘special reasons’ for cross-examining the witness.

Upon order of the Supreme Court if satisfied it is in the interests of justice and the accused or prosecution has:

– identified a matter for which a witness is to be questioned

– specified why the evidence of the witness is relevant to the matter; and

– specified why cross-examination, or examination, of the witness is justified.

If a prosecution witness gives evidence in person.

Provision for accused to give evidence or call witnesses to give evidence

Yes

Yes

No

Yes

Provision for accused to give evidence or call witnesses to give evidence

Yes

No

Yes

No

Provision for accused or witnesses called by accused to be cross-examined

Yes—if the accused gives evidence or calls witnesses to give evidence.

Yes—if the accused gives evidence or calls witnesses to give evidence.

No

Yes—if the accused has chosen to give evidence or to call defence witnesses.

Provision for accused or witnesses called by accused to be cross-examined

Yes—if the accused wishes to give evidence.

No

Yes

No

Restrictions on classes of witnesses who can be called to give evidence

Prohibition on cross-examination in sexual offence cases where the complainant is a child or is cognitively impaired.

Prohibition on cross-examination of complainants in sexual offence cases.

Prohibition on cross-examination of complainants in prescribed sexual offence cases who are cognitively impaired and complainants who are under 18 in relation to a sexual offence that occurred when the complainant was under 16.

The following witnesses can be called only if there are special reasons in the interests of justice:

– victims of violent offences

– vulnerable persons, except the victim, who are witnesses to offences involving violence (unless the prosecutor consents)

– witnesses to prescribed sexual offences.

‘Protected witnesses’ who cannot be called:

– victims (whether children or adults) in sexual offence cases;

– children who are witnesses in sexual offence cases;

– children in cases involving serious violence.

Restrictions on classes of witnesses who can be called to give evidence

Child witnesses must not be called to give evidence in chief, and child witnesses may only be cross-examined in certain circumstances, including that the interests of justice cannot adequately be satisfied by leaving cross-examination to the trial.

Arrangements must be made to limit any trauma or distress where the court has given leave for a child witness to be cross-examined.

The court must be satisfied not only that special reasons exist for these witnesses to be called, but also that ‘the interests of justice cannot adequately be served except by doing so’ for:

– victims of an alleged sexual offence

– persons with cognitive impairments that adversely affect their capacity to give a coherent account of their experiences or to respond rationally to questions

– children who are 14 years or under

Affected persons – victims of alleged sexual crimes and children – may only be examined if the court is satisfied that:

– exceptional circumstances require the witness to give evidence; and

– it is necessary in the interest of justice.

No

Restrictions on scope of questioning

Limited to the issues for which leave was granted.

Not prescribed

Limited to matters that were the basis of the direction to attend unless

– there are substantial reasons in the interests of justice for questioning on other matters; or

– special reasons in the interests of justice in the case of victims of violence.

Accused is not limited to cross-examining on an issue for which leave to cross-examine was granted, but the court may disallow any question if it appears that its relevance is in doubt or it is not justified having regard to factors that the court was required to take into account when deciding whether to grant leave to cross-examine.

Restrictions on scope of questioning

Questioning is limited to issues relevant to the reasons given by the court for requiring the witness to attend, unless the court is satisfied there are substantial reasons in the interests of justice why cross-examination relating to other issues should be allowed.

Not prescribed

The court may order and place limitations on the matters about which a witness may be examined, cross-examined and re-examined.

The court must not allow the witness to be cross-examined on matters relating solely to his or her credibility or on matters that do not relate directly to the evidence given during examination by the prosecutor.

Sentencing discount for early guilty plea

Sentencing court to have regard to whether an offender entered a guilty plea and at what stage in the proceedings.

A factor to be taken into account by the court when sentencing.

Fixed sentencing discounts on a scale from 25% to 5% for early guilty pleas, based on the timing of the plea.

A factor to be taken into account by the court when sentencing.

Sentencing discount for early guilty plea

A factor to be taken into account by the court when sentencing.

According to a set scale based on the timing of the plea, ranging from a discount of up to 40% for a plea entered within 4 weeks of the accused’s first court appearance, to a discount of up to 10% for pleas entered at the start of the accused’s trial.

A factor to be taken into account by the court when sentencing, in accordance with common law principles.

A factor to be taken into account by the court when sentencing.

Where the sentence for the offence is, or includes, a fixed term, the court must not reduce the sentence by more than 25%.

DPP has power to indict directly

Yes

Yes

Yes

Yes

DPP has power to indict directly

Yes

Yes

Yes

Yes

Time taken to finalise cases
(2017–18)

Less than 6 months: 74.7% of cases in the Magistrates’ Court and 88.1% of cases in the Children’s Court.

Less than 12 months: 69.5% of cases in the Supreme Court, 82.1% of cases in the County Court, 90.7% of cases in the Magistrates’ Court and 96.8% of cases in the Children’s Court.

Less than 24 months: 92.7% of cases in the Supreme Court and 97.6% of cases in the County Court.

Less than 6 months: 81.8% of cases in the Magistrates’ Court.

Less than 12 months: 78.8% of cases in the Supreme Court, 93.6% in the Magistrates’ Court.

Less than 24 months: 98.3% of cases in the Supreme Court.

Less than 6 months: 88.1% of cases in the Local Court.

Less than 12 months: 41.8% of cases in the Supreme Court, 22.1% of cases in the District Court, 98.2% of cases in the Local Court.

Less than 24 months: 88.8% of cases in the Supreme Court; 55.4% of cases in the District Court.

Less than 6 months: 83.8% of cases in the Magistrates’ Court.

Less than 12 months: 92.7% of cases in the Supreme Court, 94.6% in the Magistrates’ Court.

Less than 24 months: 98.6% of cases in the Supreme Court.

Time taken to finalise cases
(2017–18)

Less than 6 months: 81.5% of cases in the Magistrates’ Court.

Less than 12 months: 90.6% of cases in the Supreme Court, 93.3% of cases in the District Court, 92.0% in the Magistrates’ Court.

Less than 24 months: 98.4% of cases in the Supreme Court, 98.1% of cases in the District Court.

Less than 6 months: 70% of cases in the Magistrates’ Court.

Less than 12 months: 89.8% of cases in the Supreme Court, 72.7% of cases in the District Court.

Less than 24 months: 96.6% of cases in the Supreme Court, 91.5% of cases in the District Court, 88.4% of cases in the Magistrates’ Court.

Less than 6 months: 54.6% of cases in the Magistrates’ Court.

Less than 12 months: 59.4% of cases in the Supreme Court, 79.9% of cases in the Magistrates’ Court.

Less than 24 months: 87.4% of cases in the Supreme Court.

Less than 6 months: 85.8% of cases in the Magistrates’ Court.

Less than 12 months: 85.8% of cases in the Supreme Court, 84.7% of cases in the District Court, 94.3% of cases in the Magistrates’ Court.

Less than 24 months: 99.1% of cases in the Supreme Court, 98.8% of cases in the District Court.