Chapter 5 - Trial on indictment - Part 5.5 – Pre-trial procedure Flashcards
S179 Directions hearing
At any time except during trial, the court may conduct one or more directions hearings
S180 Accused may be arraigned at a directions hearing
(1) A may be arraigned at DH if indictment has been filed
(2) if accused pleads NG to one+ charges and signals intention to plead NG to remaining one+ charges, it is not necessary for the remainder to be read, A deemed to have pleaded NG to them
S181 Powers of court at directions hearing
(1) At a DH, the court may make or vary any direction or order, or require a party to do anything that the court considers necessary, for the fair and efficient conduct of the proceeding.
(2) w/o limiting, may (a) require A to advise if is LR and has funding for LR up to and including trial (b) require parties to notify court of any pre-trial issues they intend to raise/any orders under s 199(1) intended to be sought
(c) set timetable for pre-trial issues or apps for orders
(d) for sex offence with child/Cogimpair complainant when proceeding commenced (i) require P to advise as to availability of Comp, same as A for special hearing (ii) give direction for special hearing (iii) give specify special hearing date (before/during trial), (e) require the parties to provide an estimate of length of trial
(f) require parties to advise est. number/availability of witnesses and any relevant requirements of witnesses and interpreters
(g) order party to make/file/serve any oral or written material required for proceeding
(h) order the P to file in court and serve on A copy of any material It will rely on at trial
(i) determine any objection re disclosure of information or material by prosecution (j) allow party to amend doc. that’s been prepared by on their behalf (k) determine sentence indication application
(3) At a DH, the court may make any order or other decision that can be made/decided before trial by or under this or any other Act.
S181A Course of conduct charge
(1) CoCC has same meaning as CL 4A of Sch 1
(2) (a)-(b) Section applies if the charge on indictment is CoCC and the A (a) would plead guilty to specified period (b) and NG to rest
(3) accused must at DH or otherwise, advise asap of this course after deciding how to plead to the charge
(4) if accused so advises the Court, and C is satisfied it’s not appropriate for A to be arraigned, A must not be arraigned at DH pending filing fresh indictment or making decision to proceed with indictment as already filed
(5) If FI filed that is confined and accused does not plead guilty to specified period, further FI may be filed containing original or amended version of charge
(6) The accused may be arraigned on that further fresh indictment unless the court considers that it is not in the IOJ to do so.
S182 Summary of prosecution opening and notice of pre-trial admissions (28 days)
(1) unless court otherwise directs, at least 28 days before the day on which trial of A is listed to commence, DPP must serve and file (a) summary of opening and (b) notice of PTA
(2) summary must outline (a) manner in which case against A will be put, (b) acts facts matters and circs being relied on to support guilty finding
(3) notice of PTA must identify statements of witnesses whose evidence, in DPP opinion, ought to be admitted w/o further proof, including evidence directed solely at formal matters like
(a) continuity (b) person’s age (c) proving accuracy of plan, or that photographs taken in certain manner/time
(4) If an A has not received, under s 147, a copy of statement identified in notice of PTA, notice must contain copy of statement.
S183 Response of accused to summary of prosecution opening and notice of pre-trial admissions (within 14 days)
(1) within further 14 days of receiving the above, A must serve on P and file in court (a) response to P opening and (b) response to notice of PTA
(2) Response of the A to the summary of the P opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.
(3) The response of the A to the notice of PTA must indicate what evidence, as set out in the notice, is agreed to be admitted as evidence without further proof and what evidence is in issue and, if issue is taken, the basis on which issue is taken
(4) Despite the foregoing, A is not required to state (a) identity of any witness 2 be called by A (other than expert witness),
(b) OR whether A will give evidence
S184 Intention to depart at trial from document filed and served
If party intends to depart substantially at trial from matter in document served and filed by that party under this Division, party (a) must inform court and other party before trial (b) if court orders, inform court/party of details of such proposed departure
S185 Continuing obligation of disclosure
(1) Section applies to any IDT that (a) comes into possession of P after A committed for trial (b) or in possession of P when/after DI is filed and is hand-up-brief-able.
(2) Subject to subsection (4) and section 185A, the P must serve copy of doc/list on the A ASAP after (a) P gets it OR (b) direct indictment is filed against accused.
(3) If IDT not reasonably copy-able, P must advise A of its existence and make available for inspection at agreed time/place
(4) The P need not provide any IDT under this section if it has already been provided to the accused by the prosecution.
S185A Disclosure of evidence that is child abuse material
(1) The P need not provide, or make available for inspection, any IDT that is required by s 185 to be provided or made available for inspection if the P believes that doing so will result in the disclosure of CAM to A personally
(2) A may apply for provision order regarding the foregoing IDT
(3) court may, having regard to whether A is LR, order on any conditions specified by it disclosure to (a) LP (but not A) (b) to A personally.
S186 Disclosure of address or telephone number of witness
(1) P must not disclose address or pho no of any person in any IDT provided to A unless (a) P believes that (i) address/phono not linkable by the IDT to any particular person (ii) “” is relevant to the offence charged and won’t present r’bly a’ble risk to any person’s welfare/safety, OR (b) Court permits disclosure per on application made by P or A (3)
(2) P may delete, render illegible, an address or telephone number included in the IDT before service on the A.
(3) court can grant application if satisfied of (a) relevance of address/phono to the offence charged; AND (b)(i) no r’ably ascertainable risk to welfare/safety of any person, OR
(ii) regarding (4), IOJ outweigh any risk. (4)(a) right to privacy of witness, (b) right of A to prep. properly for hearing, IOJ outweigh said risks
S187 Previous convictions of witness (may request particulars, can refuse if irrelevant but existence must be disclosed)
(1) The A may request the P to provide particulars of previous convictions of any W who the P intends to call at the trial.
(2) Request under subs (1) does not require the P to give to the A particulars of any previous conviction of any W if the PC is, because of its character, irrelevant to the proceeding but the P must advise the A of the existence of any undisclosed PCs
S188 Prosecution notice of additional evidence
(1) additional evidence means any evidence that is not included in the depositions in the proceeding.
(2) If the DPP intends to call a W at trial to give additional evidence, it must serve on the A and file in court
(a) a notice of intention to call additional evidence; and
(b) a copy of statement of proposed witness containing the AE or an outline of the AE that the witness is expected to give.
S189 Expert evidence (14 days before trial, not 7 like summary)
(1) If A intends to call person as EW at trial, A must serve on P statement of expert and file w court at least (a) 14 days before trial listed to commence (b) If statement not then in existence; as soon as it comes into existence.
(2) Statement must:
● (a) Include name and business address of W
● (b) Describe relevant qualifications to give exp. evidence
● (c) Set out substance of the evidence it proposes to adduce including opinion and the acts, facts, matters and circumstances on which the opinion is formed
Note s177 EA
190 Alibi evidence
(1) A must not without leave of court (a) give evidence personally; or (b) adduce evidence from another witness in support of alibi unless has given notice by serving notice of alibi on DPP:
(2)(a) At least 14 days after day on which A committed for trial (b) if (a) inapplicable, 14 days after accused received indictment
(3) serve per 392
Notice must contain:
(4)(a) Particulars as to time & place of the alibi
(b) Name and last known address of any W to the alibi
(c) If not known, any material that may assist in finding above
(5) If W not named/addressed in notice of alibi, A can’t call them unless Court satisfied A took reasonable steps to ensure name and address of W would be ascertained
(6) if A notified by DPP that witness named in notice of alibi not traced, A must give written notice without delay of any further info that would materially assist in finding W
(7) Court can’t refuse leave under (1) if A not made aware of the section.
(8)(a)-(b) if A gives NofA, DPP wants adjournment, court must grant for period appearing to court to be necessary to allow alibi investigation unless apparent that doing so would prejudice proper presentation of A case.
S191 Offence to communicate with alibi witness
(1)(a) Person acting for the prosecution or (b) a police officer cannot communicate directly or indirectly with an alibi witness without consent and presence of (c) LP or (d) A themselves.
1 year imprisonment penalty
(2) Subsection (1) does not apply to a person who A has been notified may be called as witness for P at trial.
