Court Process/Commence of Proceedings Week6

Question 1

3 step process for CAN’s:

Answer 1

1) Commencement
2) Filing
3) Service

Question 2

Definition ‘Commence’:

Answer 2

To commence a proceeding is to issue or create and then file such proceedings.

Question 3

S.172 Criminal Procedures act 1986- Issuing and filing of a CAN:

Answer 3

• To start proceedings issue and file CAN.

- CAN issued when person has committed or suspected of committing offence.

Question 4

S.175 CPA- Form of CAN (PORNS):

Answer 4

• CAN must do the following;
  • Particulars of the offence
  • Offence Describe
  • Require accused to appear before court at set time/date (Unless warrant application)
  • Name of the prosecutor
  • State that failure to appear may result in arrest/matter being dealt with in absence

Question 5

3.11 Local Court rules 2009- CAN (Time Date Place)

For matters heard in local court (Summary), CAN must also do following;

Answer 5

• The time and date of the alleged offence or, if the exact time and date are not known or the alleged offence occurred over a period of time, the period of time during which the offence is alleged to have occurred,
• The place where the offence is to alleged to have occurred.

Question 6

Definition of ‘File’:

Answer 6

Is simply to register the existence of a CAN or an application at court, once filed in the court’s registry, the proceeding is deemed to have commenced.

Question 7

Must be filed to court registry where the proceeding is to be listed;

Answer 7

• Hand delivered
• Post sent
• Facsimile

Question 8

S.179 CPA- Time limits for commencement of summary proceedings:

Answer 8

• No later than 6 months.
• Does not apply to indicatable offence being dealt with summarily or indictable offence involving death or offence subject to coronial inquest.
• For summary matters involving death or coronial inquest; proceeding must commence no later than 6 months after conclusion of inquest or 2 years from when offence was alleged to be committed (Whatever comes first).

Question 9

Definition ‘Serve’:

Answer 9

To serve is a process (i.e. a CAN, a subpoena or a brief of evidence) to ‘give’ or ‘present’ to the other person

Question 10

Originating document:

Answer 10

Originating document means an application notice or a court attendance notice (CAN).

Question 11

S.177 CPA- Service of CANs:

Answer 11

• A CAN issued by a police officer must be served by a police officer.
• For indictable matters; must be served in person in accordance with REG 5.3 LCR.

Question 12

5.3 LCR- Effected Personal service:

Answer 12

• By leaving a copy of the document with the person, or leaving it in their presence if they don’t accept it and explaining its nature.
• If the person is violent, leaving the document as near to the person as practicable counts as
effective service.

Question 13

5.6 LCR- Service of originating documents:

Answer 13

Unless otherwise provided by this Part, an originating document is to be served personally.

Question 14

5.6A LCR- Originating documents may be served on legal practitioner:

Answer 14

If a person has engaged a legal practitioner in the proceedings and instructed that legal practitioner to accept service, service of the originating document on the person may be effected by serving the document on that legal practitioner.

Question 15

5.6B LCR- Service of originating documents on inmate of correctional centre:

Answer 15

An originating document may be served personally on an inmate of a correctional centre or by either of the following methods:

(a) By faxing a copy of the document , addressed to the inmate.
(b) By transmitting an electronic copy of the document, addressed to the inmate.

Question 16

5.5 LCR- Personal service on inmate of correctional centre:

Answer 16

If an inmate or detainee personal service of a document is effected by leaving a copy of the document with the general managers of a correctional facility or detention facility.

However if the matter is indictable and the accused is not in gaol, or not legally represented then you must serve the court attendance notice personally.

Note that personal service of a CAN (an originating document) is still required for Indictable
offences which are dealt with summarily unless otherwise provided, rule 5.6.

Question 17

5.9 LCR- Service of CANs for summary matters (Police Protect Fukwits Everyday):

Answer 17

• Personally.
• Posting the notice, addressed to the person and to their personal address.
• Faxing a copy, addressed to the person and to their personal address
• Emailing a copy addressed to the person and to their personal email address (If the person consents to this method).
• If a method other than personal service is chosen, it must be served 21 days prior to the first listing.

If a CAN is Posted it is deemed served after 4 working days.
Proof of service document required for court.

Question 18

S.182 CPA- Written pleas:
• Accused person served with a CAN, can lodge a notice in writing to the registrar indicating they are pleading guilty or not guilty prior to the listing day.
• If lodged 7 days prior to the listing day; the person does not have to attend court and is taken to have attended court on the day of listing (Won’t be arrested for not attending).

Answer 18

• This section does not apply to a person who has been granted or refused bail or a person whom bail has been dispensed with (If you had bail at some point you have to attend court).

Benefit for accused for pleading guilty at first available opportunity is 10% discount.

Question 19

Plea of not-guilty:
• For indicatable matters, if a plea of not guilty is entered, magistrate will adjourn matter for 6 weeks and give prosecution 4 weeks to serve a brief.

Answer 19

• The court will not demand a brief unless defence enters plea of not guilty or there is no plea of guilty on second mention date.
• Brief must be served on defence no later than 14 days prior to hearing.

Question 20

5.10 LCR- Service of other documents (BRIEF):
Service of a document (other than an originating document) required or permitted by the Court to be served on a person in proceedings may be effected: (Police Protect Fukwits Lives Everyday):

• Personal service, or
• Posting a copy of the document,

Answer 20

• Faxing a copy of the document (If consented to), or
• Leaving a copy of the document at their residential or business address and with a persons over 16 who resides or is employed at the residence or business.
• Electronic copy of the document, addressed to the person, to the person’s electronic service address (If consented to).

Same methods for serving on legal practitioner.

Question 21

DV Matters and brief of evidence:
The court may require the defendant to enter a plea at the first time the matter is mentioned in court. If no plea can be entered at that time, the court will allow an adjournment of not more than 7 days for a plea to be entered. If a plea of not guilty is entered then a hearing occurs with expedition.
The matter will be listed for hearing within 3 months of the charges being laid.

The intention of this accelerated approach is to have DV matters determined quickly in order to:

1. Relieve stress on the victims
2. Reduce the amount of time the offender has to manipulate the victim and potential witnesses.

Answer 21

To achieve this accelerated process, the following practice directions apply:
(a) Where a person is charged with a domestic violence offence, the prosecution shall serve on the defendant at the first available opportunity, and not later than the first mention date in court a copy of the main parts of the brief of evidence upon which the prosecution relies.

The main part of the brief is to include: (Mini Brief)

(i) The alleged facts;
(ii) A copy of the victim’s statement; and
(iii) Any photographs on which the prosecution will rely.