7: preliminaries to a CC trial

Question 1

If court thinks accused has disability

What can they do?

Answer 1

can postpone question of fitness until opening for defence.

If jury acquit, fitness question not determined.

Question 2

Fitness questions MUST tried

With or without a jury?

Answer 2

Fitness questions MUST tried without jury. Court MUST written/oral evidence 2 registered medical practitioners, one must approved.

Question 3

If unfit to plead, court may order:

Answer 3

1. Hospital order, no time limit
2. Supervision order; or
3. Absolute discharge

Question 4

What happens in a :

Arraignment procedure?

Answer 4

clerk reads indictment, accused pleads.

Question 5

Can you arraign live?

Answer 5

Can arraigned live - Jurors can excluded.

Question 6

At arraignment is the word “not guilty” necessary?

Answer 6

pleas: 1) not 2) guilty 3) guilty altern offence. Not essential word “not guilty”, can silent.

Question 7

Who makes a plea?

Answer 7

If counsel pleads guilty for accused = not valid = mistrial, must be by accused personally.

Question 8

If guilty plea and dispute material facts = MUST

Answer 8

order Newton hearing.

Question 9

Judge ALWAYS discretion to

what?!

Answer 9

allow plea guilty of lesser offence accepted.

Question 10

Change plea = not guilty to guilty = allow prior to the jury returning verdict. If change plea Guilty to not guilty = discretion to withdraw plea before sentence passed. When mags sends D to trial, CC must take plea – not less THAN:

Answer 10

2 weeks after sending and more than 16 weeks after that date.

Question 11

Case management hearings are

Answer 11

1. early guilty plea scheme and
2. PTPH.

Question 12

Judge at PTPH MUST be satisfied:

Answer 12

1. D understands credit will be given for guilty plea;
2. What D’s plea is/to be;
3. Trial can take place in D’s absence and consequences

Question 13

If deferred prosecution agreement proposed – MUST have

Answer 13

PRLIMINARY HEARING

Question 14

If deferred prosecution agreement proposed – MUST have preliminary hearing, prosecution MUST consent and court invited to declare:

Answer 14

1. Interests of justice; and
2. Fair, reasonable and proportionate

Question 15

If Accused in custody + sent to CC without initial details of pros case, material required for bail MUST at least

HOW LONG

Answer 15

7 days ahead PTPH.

Question 16

Pros MUST provide details OF WHAT AT THE PTPH?

Answer 16

availability pros witnesses PTPH.

Question 17

PTPH Form includes:

Answer 17

1. Orders for witnesses/witness summons;
2. Orders for disclosure; and
3. Outstanding legal issues, e.g. bad character.

Question 18

atters in PTPF Form should not used evidence against him, but can be via

WHAT DISCRETION?

Answer 18

s78 discretion.

PTPH form is admissible as evidence as it is an admission by an agent!

Question 19

If D pleads not guilty, and pros proposes no evidence against, court may order:

Answer 19

verdict be recorded without going to jury – same effect as if D been tried and acquitted on jury verdict. Prosecution cannot be forced to call evidence.

Pros can give no evidence, or order indictment to lie on file. Letting counts lie may never result in trial.

Before arraignment after evidence served, accused may apply to CC for charge be dismissed. Judge MUST dismiss charge if evidence not sufficient for proper conviction. Accused may oral app for dismissal only after written notice of intention.

Question 20

On app to dismiss, judge MUST take

Answer 20

take all evidence into account and not in isolation. Judge MUST asses inferences prosecution propose to ask jury to draw.

Question 21

Sending case to CC from Mags – Apps to dismiss = D MAY

HOW AND WHEN?

Answer 21

(after D served with doc containing evidence on which charges, but BEFORE arraignment) apply orally/in writing to CC for charges = dismissed. Judge MUST dismiss if evidence against D = not sufficient.