Committal proceedings

Question 1

What is the purpose of a committal proceeding?

Answer 1

The purposes include narrowing the issues for trial, ensuring adequate disclosure and preparation of defence etc (s 97)

A committal proceeding provides an opportunity for A to receive disclosure of the P’s case and to test whether there is sufficient evidence to support a conviction

Question 2

What is the test for a committal hearing?

Answer 2

The test for committal is found in s 141(4) and is determined by whether there is evidence of sufficient weight to support a conviction: if there is not, the accused must be discharged, and if there is, then the accused must be committed for trial.

Question 3

When should a committal proceeding be held?

Answer 3

According to s 96, a committal proceeding must be held in all indictable matters, except where:
o a direct indictment is filed; or
o the charge is heard and determined summarily.

Question 4

What are the objectives of committal proceedings?

Answer 4

S 97 states that the purpose of committal proceedings are:
* to determine whether a charge should be heard and determined summarily
* to determine whether there is sufficient evidence to support a conviction
* to determine how the accused proposes to plead
* to ensure a fair trial, if the matter proceeds to trial by:
o ensuring adequate disclosure of P’s case
o enabling the A to hear the evidence against them and to cross-examine P’s witnesses
o enabling A to put forward a case at an early stage
o enabling A to adequately prepare and present a case
o enabling the issues in dispute to be defined

Question 5

What are the timelines for a committal proceedings?

Answer 5

FH - within 7 days if accused is on remand or on bail / within 28 days if accused is on summons

Service of HUB - at least 42 days before committal mention
Service of plea brief - within time allowed for the service of HUB
Filing of HUB or plea brief and service on DPP - within 7 days of service on accused
Filing a case direction notice - at least 7 days before the committal mention hearing
Committal mention - within 3 months of FH in sex offences or all other matters within 6 months

Question 6

How does a committal proceeding commence?

Answer 6

with a FH

Question 7

What happens at a FH?

Answer 7

According to s 101, At a filing hearing, the Magistrates’ Court may:
 fix a date for a committal mention hearing;
 fix a period of time for service of a hand-up brief; or
 make any order or give any direction that the court considers appropriate

Question 8

Timing of a filing hearing

Answer 8

A filing hearing must be held within 7 days of the filing of the charge sheet if the accused is remanded in custody or bailed, or within 28 days if a summons is issued (s 102).

Question 9

What does the HUB contain?

Answer 9

HUB contains all evidence relied on against the accused and lists all other evidence that might exist (s 110).

Question 10

What if the informant requires more time for the service of HUB?

Answer 10

If the informant requires an extension of time, this cannot be agreed with the solicitors, but must be granted by the Court.

Question 11

What is a case direction notice?

Answer 11

Whatever course is being taken from the Committal Mention, the parties must advise the of the proposed course in the Case Direction Notice (“CDN”). According to s 118, A and the informant/DPP must jointly file a CDN if a hand-up brief was served at least 7 days before the committal mention date.

Question 12

What should be included in a case direction notice?

Answer 12

Must be in Form 32 of the Magistrates’ Court Criminal Procedure Rules 2019 and signed by A and either the DPP or the informant. The notice:
* must specify the procedure proposed that the matter be dealt with or indicate whether an adjournment of the committal mention hearing would assist the parties in determining how the matter should be dealt with
* must state the names of any witnesses that A intends to seek leave to cross-examine, and for each witness A must specify (s 119):
o each issue for which leave to cross-examine is sought
o the reason why the evidence of the witness is relevant to the issue
o the reason why cross-examination of the witness on the issue is justified
 The criteria for determining whether to grant leave are outlined in s 124. Defence is then limited to these issues (s 132) unless additional leave is sought and granted (s 132A).
The CDN must state, in respect of each issue specified by A:
o whether the informant consents/opposes leave in respect of that issue; and
o if leave is opposed, the reason why leave is opposed; The CDN may include a statement that A requires:
* specified items listed in the hand-up brief inspected or a copy given to the A on/before the committal mention hearing;
* a copy of any information, document or thing that A considers ought to have been included in the hand-up brief;
* particulars of previous convictions of any witness on whose evidence the P intends to rely in the committal proceeding;
The CDN may include a statement that A is prepared/not prepared, to proceed further with the committal hearing while a forensic procedure, examination or test described in the hand-up brief remains uncompleted (s 119).

Question 13

What is a committal mention hearing?

Answer 13

First hearing after service of the HUB where A indicated if he/she is pleading guilty or not guilty to the charges. The committal mention is where the parties tell the Court whether the A is pleading guilty or not guilty to the charges and how the matter is proceeding.

Question 14

What can happen at a committal mention hearing?

Answer 14

According to s 125, at a committal mention hearing, the Magistrates’ Court may:
o determine the committal proceeding in accordance with s141, s142 or s143 of the CPA 2009;
o offer a summary hearing or determine, whether the matter should be heard summarily;
* if granted, the application should be followed by a plea hearing
* an application for summary jurisdiction to be followed by a contested hearing (relatively rare)
o determine an application for leave to cross-examine a witness at a contested committal;
o fix a date for a committal hearing, or change the date of a hearing;
* this if when A is to be committed for trial on PG and date obtained for plea hearing at County Court (‘straight hand-up brief’)
o hear and determine any objection to the disclosure of material;
o make any other order or give any other direction that the court considers appropriate

Question 15

What are the two options for accused at a committal mention hearing?

Answer 15

resolved (PG & WD of charges) or not resolved
If pleading not guilty, A makes application to XXn witnesses at committal. A case direction notice must be filed at least 7 days before a committal mention hearing.

Question 16

In what circumstances the accused cannot have a committal hearing?

Answer 16

where one or more of the charges in the brief is a charge for a sexual offence where the complainant is a child or is cognitively impaired, there is no right to cross-examine at committal (s 123).
There is the capacity for some cross-examination in the higher court of witnesses other than the complainant, following the procedure in s 198A. The complainant will be cross-examined once only in a ‘special hearing’ (s 370) which is recorded and played to the jury.

Question 17

What is a committal case conference?

Answer 17

Case management tool, informal discussion between P, D and the court to try and narrow/rectify the issues in dispute.
- Involves greater judicial intervention and requests for greater disclosure of the defence.
- Evidence of statements and actions made in the course of a case conference are not admissible (s 127)

Question 18

What is the purpose of a special mention?

Answer 18

A special mention hearing may be held on the application of a party or on the court’s own motion for any issues which arise during the course of the committal proceeding.
Usually used where the parties wish to mention the matter for some reason. E.g. P seeks to extend time for service of the hand up brief and the holding of a committal mention; D seek to mention the matter to raise non-disclosure of evidence before the Magistrate; new witnesses have been added to the list and the time set for the contested committal is insufficient etc.

Question 19

What is the purpose of a special mention hearing?

Answer 19

According to s 153, at a special mention hearing, the Magistrates’ Court may:
o change the date fixed for any hearing in the committal proceeding
o make any order or give any direction the court considers appropriate for the management of the committal proceeding
o immediately hold a committal mention hearing and either determine the matter or direct the informant to serve a hand-up brief
This is more common in large proceedings with multiple co-accused with contested committals that will last many weeks to ensure that disclosure is proceeding according to schedule, funding is in place and so on. The “special mention” also exists in the summary procedure.

Question 20

What is a contested committal hearing?

Answer 20

A contested committal is conducted when leave has been granted to cross-examine witnesses at a committal mention, then the witnesses are required to attend. If some or all fail to do so, the parties may agree that the evidence can be taken pre-trial pursuant to s 198B.
If the defence seeks cross-examination prior to committal, the Court may adjourn the hearing for a second opportunity to attend. The defence is then permitted to cross-examination in accordance with the leave granted at committal mention (s 132) or on a different issue where the Court gives leave (s 132A).

Question 21

What is the consequence of a witness failing to attend the contested committal hearing?

Answer 21

the evidence of any witnesses who failed to attend will be removed from the HUB (s 134). This does not prevent the P from filing the statement through notice of additional evidence at a later time.

Question 22

What is the process at a contested committal hearing?

Answer 22

The prosecution calls the witness, asks the witness their details, to identify their statement, whether there are any changes they wish to make and otherwise whether the statement is true and correct. The prosecution cannot go beyond this during evidence in chief (s 130(3)) though can re-examine (s 130(7)). If the prosecution wishes to clarify details of the witness, the proper process is for police to take a further statement in advance of the committal.
During the contested committal hearing, the prosecutor will tender the balance of the HUB (this is usually done during the evidence of the informant or at the conclusion of the prosecution case) (s 139(1)). Defence can object to particular matters being tendered with the HUB (s 139(2)), it will commonly be practical to raise this with the prosecution in advance.
Sexual Offences  If the committal hearing relates to a sexual offence (not one where the complainant is a child or cognitively impaired witness, for which a contested committal is not permitted), then the evidence of the complainant will be taken in an effectively closed court (see 133(3)).

Question 23

What orders can the magistrate make after the conclusion of the contested committal?

Answer 23

According to s 141(4), the court must make one of the following orders at the conclusion of all the evidence and submissions:
o the evidence is not sufficient to support a conviction for any indictable offence, discharge the accused; or
o the evidence is sufficient to support a conviction for the offence, commit the accused for trial; or
o the evidence is of sufficient weight to support a conviction for an indictable offence other than the offence with which A is charged, adjourn the committal proceeding to enable the informant to file a charge-sheet in respect of that other offence and, if a charge sheet is filed, must commit the accused for trial.

Question 24

Bail after the contested committal hearing?

Answer 24

Upon being committed for trial, the question of bail arises anew (s 144(2)(c)). The accused will usually be bailed to an initial directions hearing (IDH) the following day, except in the case of sex offences, in which the IDH can be delayed. This is so whether committed to the County or Supreme Courts.

Question 25

What is compulsory cross examination?

Answer 25

Informant can apply for the compulsory examination either after the filing of a charge in the committal stream and before the committal mention (s 103(2)).

An application can be made after the committal mention or before the committal hearing commences, but the Magistrate must be satisfied that it is in the interests of justice to allow the application at that time (s 103(3)).

Question 26

What should the informant include in their application for a compulsory XXN?

Answer 26

According to s 103(4), the informant must advise the Court of the following in the application:
o whether the person sought to be examined has refused to make a statement to P
o whether the informant is aware of whether the person has obtained legal advice concerning the proposed examination
o whether the person sought to be examined is/was a suspect in matter to which the examination relates
o If the person to be examined is or has been a suspect, they must be given notice of the application and the opportunity to be heard on it.
o whether the person sought to be examined is aware of the application
o any other information prescribed by the rules of court.

Question 27

Can the accused be heard on the application for compulsory XXN of a witness?

Answer 27

The accused can be given notice of the application (s 103(5)) but cannot address the court on the application (s 103(7)). The accused must be notified of the Court’s order for a compulsory examination (s 105(1)) and may attend the hearing of the compulsory examination (s 106(3)).

Question 28

Can a plea brief be served after the service of HUB?

Answer 28

NO
A plea brief cannot be served once a hand-up brief has been served (s 116).

Question 29

What should the plea brief contain?

Answer 29

According to s 117, a plea brief must contain:
o a copy of the charge-sheet;
o a statement of the relevant facts;
o a copy of the accused’s signed statement, or the record of interview;
o a copy or a transcript of any recording of the accused;
o a copy or statement of any other evidentiary material relating to a relevant confession or admission made by the accused;
o a copy of any alleged victim’s statement if it concerns the circumstances of the offence and would be admissible

Question 30

What is the purpose of a plea brief?

Answer 30

The purpose of the plea brief is to alleviate the need to compile all of the evidence where the accused do not dispute the allegations of police and intend to plead guilty to the charge.