Chapter 4 - Committal Proceeding; Parts 4.5, 4.6 - Case direction, Committal mention and case conference Flashcards
S 118 Case direction notice
(1) if HUB served, accused/DPP or accused/informant must jointly hand up CD notice 7 days before committal mention hearing
(2) if A is not LR and does not sign CDN, DPP or informant must file, despite it (a) being unsigned by A and (b) A did not participate in discussion re: CDN or any other preparation activity.
(3) if MC fixes another date for CM hearing (a) Court can direct that another CD notice be jointly filed by accused and informant/DPP at least 7 days before that new date
(b) give any direction considered appropriate re that CDN
S 119 Contents of case direction notice
(a) must be in prescribed form (b) must specify procedure for dealing with the matter or indicating whether adjournment of committal mention hearing would assist the parties in determining how matter should be dealt with (c) state the names of any Ws A intends to seek leave to X-examine, and for each W A must specify (i) each issue for which leave will be sought (ii) reason why evidence relevant to issue (iii) reason why x-exam is justified
(d) (i)-(ii) for each issue identified, state whether informant consents/opposes and reasons for any opposition
(e) include statement accused requires (i) specific items listed in HUB be produced for inspection/copy provided to the A on or before the CMH
(ii) copy of certain IDT A says should have been in HUB
(iii) particulars of priors of any P witness
(f) may include statement about A being (not) prepared to proceed with committal hearing while forensic procedure/exam/test remains uncompleted (g) must be signed by /on behalf of A and DPP, or if DPP not conducting proceeding, informant
S 120 Late application for leave to cross-examine witness
(1) MC may permit A to apply for leave to X-exam witness after expiry of period for filing CDN if satisfied in interests of justice, having regard to why application not made before expiry of period
(2) if MC allows A to apply for leave, A/DPP or A/informant must jointly file another CDN (a) at least 7 days before next committal mention hearing (b) within any other period that is fixed by court
(3) 119(b) doesn’t apply to CDN filed under subsection (2)
S 121 Adjournment without appearance of parties
(1) if parties indicated in CDN that adjournment of CMH would assist in determining direction-forward, MC may, without requiring appearance of informant or A, if satisfied in IOJ to do so:
(a) adjourn hearing for up to 14 days and fix another CMH date
(b) if bail granted to A re: the comproc (i) excuse appearance on date on which bailed to attend (ii) extend bail to date fixed per (a)
(2) if MC adjourns CMH per subs (1), must give parties written notice of new date (3) If MC extends bail under (1)b)(ii), must give to A and suret(ies), written notice of (a) the extension of bail by the court in the absence of the A/surety; and (b) date/time/place at which A is bound to attend; and (c) the consequences of failure to attend on that date at that time and place.
S 122 Compliance with request to copy or inspect items or disclose previous convictions of witness
(1) Subject to (2), informant must comply with any reasonable info request from A per 119(e)(i) or (ii) for copy, but if informant considers not reasonable to copy owing to its size/nature, must allow A to inspect it on or before CMH
(2) informant can object to provision on any s 45, s 114 grounds (3) informant may object to disclosure of particulars of PC of any W under s 119(e)(iii) if the PC is, because of its character, irrelevant to the proceeding but the informant must advise the accused of the existence of any undisclosed previous convictions.
(4) nothing in this section (a) prevents A’s application for W summons re: item in HUB (b) requires informant to produce item listed in HUB if production not requested/W summons not issued, unless MC otherwise orders
(c) prevents MC or informant from proceeding with committal hearing, irrespective of any 119(f) notice
Section 123 – No cross-examination in certain sexual offence cases
(1) (a)-(b) applies to proceeding relating (wholly/partly) to sexoff charge if one/more complainants is child or person with cognitive impairmt and when proceeding commenced, any complainant was child or person with cognitive impairment
(2) Despite anything contrary in this Part, the MC must not grant leave to x-exam any W in proceeding to which this section applies
S124 – leave to cross-examine other witnesses - Part 1
(1AA) Section does not apply to CP to which s 123 applies.
(1) no x-exam of witness without leave
(2) MC to regard whether informant consents or opposes leave
(3) MC must not grant leave to X-exam W unless satisfied
(a) A identified an issue to which proposed questioning relates, and provided reason why evidence of W is relevant to that issue (b) X-exam of W on that issue is justified
(4) in considering justification, MC to regard need to ensure that (a) P case is adequately disclosed, (b) issues adequately defined
(c) evidence is of sufficient weight to support conviction for offence A is charged with (d) fair trial will take place if matter proceeds to trial, including that A is able adequately to prepare and present a defence (e) matters relevant to potential guilty plea clarified (f) matters relevant to potential discontinuance of prosecution under s 177 clarified (g) trivial, vexatious, oppressive cross-exam not permitted (h) interests of justice otherwise served
S124 – leave to cross-examine other witnesses - Part 1
(5) In addition to (4) requirements, if witness under 18, MC must also have regard to (a) need to minimise trauma that might be experienced by witness in giving evidence (b) any relevant condition/characteristic of witness, eg age culture, personality education, level of understanding (c) mental/intel/phys disability to which W appears to be subject and of which court is aware
(d) witness importance to the P’s case (e) existence/lack of corroborating evidence for the W’s proposed evidence (f) extent of any proposed admissions (g) probative value of proposed evidence of the witness (h) the issues in dispute (i) the weight of the proposed evidence of witness (j) any statements of other witnesses that contradict the proposed evidence of the witness
(6) if MC gives leave, must specify permitted issues for x-exam
S125 Committal mention hearing (determine; offer; determine xexam; fix CH date; disclosure objection; fix another CMH; other orders)
(1) At CMH, MC may:
(a) immediately determine the CP per 141-143
(b) offer summ. hearing or determine application for SH per s 30 (c) hear/determine x-exam leave application
(d) fix date for committal hearing
(e) hear/determine any objection to disclosure of material
(f) fix another date for CMH
(g) make any other order/give any direction Crt thinks appropriate
(1A) (c)-(d) – not applicable to CMH re: s 123 CP
(2) in considering whether to fix another CMH date to let A get LR, MC must regard whether A has made r’ble attempts to get LR
(3) If relates to 45(1)(g) ground (child abuse material), MC, having regard to whether A is LR, may order that disclosure be made to
(a) LP but not to the A personally, OR (b) to the A personally.
S126 Time for holding committal mention hearing (3mths for sexoff, otherwise 6mths)
(1) CMH must be held—
(a) in case of sexual offence, within 3 months after commencement of crim proceeding for the offence
(b) for any other offence, 6 months “ “”
(2) MC can fix longer period for holding of CMH if satisfied in IOJ, having regard to (a) seriousness of the offence (b) reason longer period required
(3) (1) doesn’t apply (a) if A failed to attend in accordance with his/her bail conditions, (b) warrant issued but A has not been arrested by end of (1)(a)/(b) period, (c) accused requests CMH be held later and MC considers in IOJ for request to be granted
(4) If CMH has not been held before expiry of period referred to in subsection (1)(a) or (b) or (2) extended period, the MC, on the application of the A, may order the A to be discharged.
S127 Committal case conference
(1) can direct parties to comproc to appear at CCC conduct. by M (2) wherever practicable, should be conducted on date of CMH (3)(a) (b) oral/doc evidence re: CCC not subsequently admissible, unless (c) all parties consent, OR (d) proceeding is CP for offence alleged to have been committed during/in connection with CCC
