7: preliminaries to a CC trial Flashcards
If court thinks accused has disability
What can they do?
can postpone question of fitness until opening for defence.
If jury acquit, fitness question not determined.
Fitness questions MUST tried
With or without a jury?
Fitness questions MUST tried without jury. Court MUST written/oral evidence 2 registered medical practitioners, one must approved.
If unfit to plead, court may order:
- Hospital order, no time limit
- Supervision order; or
- Absolute discharge
What happens in a :
Arraignment procedure?
clerk reads indictment, accused pleads.
Can you arraign live?
Can arraigned live - Jurors can excluded.
At arraignment is the word “not guilty” necessary?
pleas: 1) not 2) guilty 3) guilty altern offence. Not essential word “not guilty”, can silent.
Who makes a plea?
If counsel pleads guilty for accused = not valid = mistrial, must be by accused personally.
If guilty plea and dispute material facts = MUST
order Newton hearing.
Judge ALWAYS discretion to
what?!
allow plea guilty of lesser offence accepted.
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:
2 weeks after sending and more than 16 weeks after that date.
Case management hearings are
- early guilty plea scheme and
- PTPH.
Judge at PTPH MUST be satisfied:
- D understands credit will be given for guilty plea;
- What D’s plea is/to be;
- Trial can take place in D’s absence and consequences
If deferred prosecution agreement proposed – MUST have
PRLIMINARY HEARING
If deferred prosecution agreement proposed – MUST have preliminary hearing, prosecution MUST consent and court invited to declare:
- Interests of justice; and
- Fair, reasonable and proportionate
If Accused in custody + sent to CC without initial details of pros case, material required for bail MUST at least
HOW LONG
7 days ahead PTPH.
Pros MUST provide details OF WHAT AT THE PTPH?
availability pros witnesses PTPH.
PTPH Form includes:
- Orders for witnesses/witness summons;
- Orders for disclosure; and
- Outstanding legal issues, e.g. bad character.
atters in PTPF Form should not used evidence against him, but can be via
WHAT DISCRETION?
s78 discretion.
PTPH form is admissible as evidence as it is an admission by an agent!
If D pleads not guilty, and pros proposes no evidence against, court may order:
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.
On app to dismiss, judge MUST take
take all evidence into account and not in isolation. Judge MUST asses inferences prosecution propose to ask jury to draw.
Sending case to CC from Mags – Apps to dismiss = D MAY
HOW AND WHEN?
(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.
