Chapter 4 - Committal Proceeding; Part 4.7 committal hearing Flashcards
S128 Committal hearing (offer; hear evidence; determine; other order)
At CH, MC:
(a) may offer summary hearing/determine application for such per s 30 (b) may hear evidence per s 130
(c) if CH proceeds, must determine, per s 141, whether there’s evidence of sufficient weight to support conviction
(d) make any order/give any direction court considers appropriate
S129 attendance of witnesses (W’s being x-examined/giving EIC must attend, informant must ensure attendance)
(1) if leave granted to x-exam W referred to in s 124, or to call such a W to give oral EIC, W must attend on date to which CH adjourned for them to give evidence
(2) informant must ensure W attends at time/place fixed for giving of evidence by W (3) W required to attend CH must attend on any adjourned date unless excused by the MC
S130 Giving of evidence by witnesses
(1)(a)-(b) recording = audio/AV recording of EIC of witness, compulsory examination of person per s 106, transcript of which was served in the HUB
statement = witness statement, copy of which was served in HUB
(2) witness can be called to give evidence at CH if—
(a) MC grants leave under s 124 for x-exam of W; OR
(b) leave granted for P to call W to give EIC in IOJ
(3) if MC grants leave under s 124 to x-exam, EIC must be confined to W identifying themselves and attesting to truthfulness of statement/recording.
(4) If in IOJ, MC may give leave for W to give oral EIC to supplement recording/statement
(5) if exceptional circumstances exist, MC can give leave to give all EIC orally. (6) on application by party, MC may permit statement/transcript of recording to be read aloud before W asked to attest to its truthfulness or x-examined.
(7) subject to s 124, W giving EIC may be x-exam’d, re exam’d.
(8) must record evidence given in CH
S131 Disclosure of address or telephone number of witness
(1) If not already disclosed under Part 4.4, must not disclose unless MC orders on application by informant or the A.
(2) MC only grant application if satisfied that—
(a) address/phono relevant to the offence charged;
(b) (i) not likely to present reasonably ascertainable risk to welfare/physical safety of any person, OR
(b) (ii) Having regard to (3)(a) right to privacy of witness, (3)(b) right of A to prep. properly for hearing, IOJ outweigh said risks
S132 Cross examination of witnesses
(1) A who obtains leave limited to x-exam W on
(a) issues identified under s 124(6)
(b) issues for which leave obtained under s 132A
(2) without limiting any other power to forbid/disallow questions, MC may disallow Q asked in course of X-exam in CH if it appears (a) Q does not relate to s 124 / 132A issue, OR (b) Q not justified. (3) MC must regard matters in 124(4)-(5) to determn whether just
S132A leave to cross-examine witness on different issue
(1) applies if leave was given under s 124 (2) MC can give leave to X-exam on another issue not identified under s 124(6) (3) MC is to have regard to consent/opposition of informant (4) MC must not grant leave unless satisfied (a) accused has identified issue to which proposed Qing relates and has justified why evidence would be relevant to it (b) x-exam of W on issue is justified.
(5) In determining whether x-exam on an issue is justified, the MC must have regard to the matters referred to in s 124(4) + (5).
S133 Special rules applicable to sexual offences
(1) applies to a CH for sexual offence, whether or not CH relates to any other charge against the same/any other person and whether/not it’s alleged that there are aggravating circumstances.
(2) informant must be rep by LP
(3) while comp. gives evidence or evidence recording from s 106 examination being played, only following persons may be present:
(a) informant; (b) accused; (c) emotional support person (ca) intermediary for complainant (d) lawyers for P and A, not more than one legal assistant for each lawyer; (e) court officers whose presence is required, (f) authorized officers (g) recorders
(h) anyone else who has been authorised by MC to be present
(4) MC must give reasons for (3)(h) attendee
S134 Failure of witness to attend committal hearing
(1) If W who is required to attend CH does not attend, the MC may
(a) adjourn hearing (b) issue summons to compel attendance; (c) continue the CH in the absence of the W if satisfied that it would not be unfair to the A to do so.
(2) If MC continues CH, statmnt/record of W is inadmissible in CH
S135 Court may permit accused to be absent from committal hearing
(1) Before or during CH, A may apply to MC for permission to be absent from CH for specified period. (2) MC may then permit, subject to conditions (a) if satisfied there are special circs; AND (b) considers CH can’t be postponed without undue prejudice/inconvenience to P or any other A or W
(3) If MC so permits, can continue CH in absence of A
(4) s 330(3) excusal power does not apply to this section
S136 Accused who absconds etc. during a CH (can continue if postponement would cause undue prejudice/inconvenience etc to P or any other A or W)
If during CH, A (a) absconds (b) behaves in way necessitating removal (c) absent for any other reason without permission, MC may continue CH in absence of A if MC considers CH can’t be postponed without undue prejudice/inconvenience to P or any other A or W
S137 accused (natural person) absent at close of prosecution case (must postpone unless is discharging)
If (a) CH continued in absence of NP accused; AND (b) A is not present when the evidence for the P is concluded;
MC must, unless it makes an order under s 141(4)(a) for A to be discharged, (c) postpone CH until A is present, or (d) if any other A present, postpone CH in respect of charge of absent A
S138 Procedure on accused’s attendance after absence (get them up to speed)
If A (a) has been absent from CH; (b) was not LR during absence,
on A’s attendance, MC (c) must direct (i) record of evidence be played/read in A’s presence (ii) OR A be supplied with transcript
(d) may, on application of A and subject to s 124, recall W who gave oral evidence in A’s absence for further exam.
