Criminal Procedure Flashcards
What makes an offence indictable?
Offences in the Crimes Act are indictable unless contrary intention: s2B CA
Otherwise level 1 through 6 are indictable: Sentencing Act s112
What section determines that summary offences are heard and determined summarily?
s27
When can an indictable offence be tried summarily?
If s29 is satisfied and offence is Level 5 or 6, or listed in Schedule 2: s28
s29 provides court must consider charge appropriate, and accused must consent.
How is a criminal proceeding commenced?
Per s6:
- Filing a charge-sheet with the Court
- Filing a charge sheet with a bail justice
- By signing a charge-sheet pursuant to a summons
What is the limitation period for criminal offences?
12 months for summary, unlimited for indictable: s7.
Where is a proceeding to be heard?
For the MC, at the venue nearest the alleged offence, or the residence of the accused: s11
For the SC/CC, in the court nearest the place where the offence was alleged unless order made under s192 (power to change place of trial) in Part 5.5 (pre-trial procedure) division 3 (orders): s 169
What must a charge-sheet contain?
Per schedule 1:
- state offence (inc provision for statutory offences)
- contain particulars
- in ordinary language
- descriptions of anything with reasonable clarity
- for indictments, the name of witnesses.
What happens once the charge-sheet is filed to get the accused before a judge?
Court may issue notice to appear, summons, or warrant to arrest: s12
What is an accused entitled to receive prior to a summary proceeding?
- Charge sheet and particulars: s32
- Preliminary brief (notice to appear s22, on request s35)
- Full brief: s39
- Continuous disclosure: s42
- Other material: s43
What is the prosecution entitled to in a summary proceeding?
- Expert evidence witness statement: s50
- Notice of alibi evidence: s51
What happens at the mention hearing in a summary proceeding?
- Court grants summary hearing for IOHADS, hear and determine charge, fix date for contest mention or summary hearing, make any order (e.g. SCC): s53
- Informant must have available prelim brief, charge-sheet, statement of alleged facts, criminal record: s53A
What happens at a summary case conference in a summary proceeding?
Parties to manage case progression, identify and provide information required, understand evidence available, identify issues, identify steps to advance (all without prejudice): s54
What happens at a contest mention in a summary proceeding?
Accused must attend, court requires parties to provides estimate of time, number and availability of witnesses, advise legal representation: s55
Can a summary proceeding be adjourned for a diversion?
Yes, before formal plea if accused acknowledges responsibility and it appears appropriate to the MC and both the prosecution and defence consent: s59
Can an accused ask for a sentencing indication in a summary proceeding?
Yes, and then the court must not impose a more severe type if accused pleads guilty: s60 and s61
What happens at a summary hearing?
- Read out charges and take plea: s62 (self-rep), s63 (represented)
- Leave for opening addresses: s65
- Prosecution witnesses
- Leave for response: s66
- Leave for defence opening: s71
- Defence witnesses
- Leave for closing addressses: s73/s74
- Verdict & sentencing
What happens if the informant fails to appear on the date the proceeding is listed for hearing?
MC may dismiss or adjourn: s79
What happens if the accused fails to answer a summons or answer bail for a summary offence?
MC may direct personal service, issue arrest warrant, hear and determine in absence (in which case brief evidence becomes admissible per s83, and no custodial order per s87), or adjourn: s80
What happens if the accused fails to answer for an indictable offence being heard and determined summarily?
MC may issue warrant to arrest: s81
When must a filing hearing occur for a committal proceeding?
If arrested and in custody or on bail then within 7 days of charge-sheet being filed, if summons issued then within 28 days of charge-sheet being filed: s102
What is the purpose of a committal proceeding?
To determine if charge is appropriate to be heard and determined summarily, whether there is evidence of sufficient weight to support a conviction, determine how accused proposed to plead, and ensure a fair trial by giving accused the right to hear or read the prosecution case, prepare for and put forward a defence, and define the issues: s97
What hearings may occur in a committal proceeding?
Filing hearing, special mention, compulsory examination, committal mention, committal case conference, and committal hearing: s100
When does a committal proceeding commence?
On commencement of a filing hearing: s98
When must the informant serve and file a hand up brief?
Served 42 days before the committal mention, then filed within 7 days
What must a hand up brief contain?
Notice specifying the committal mention date, nature of committal proceeding and purposes of stages, importance of legal representation, right to apply for legal aid, charge-sheet, statement of material facts, any info/doc/thing the prosecution intends to rely: s110
Is there an ongoing disclosure after serving the hand up brief?
Yes: s111
When must a joint case direction notice be filed?
7 days before the committal mention: s118
What must a joint case direction notice contain?
The procedure for how the matter will be dealt with, whether adjournment would assist, names of witnesses, if and why accused intends to seek leave to cross-examine, issues opposed, previous convictions: s119
In a commital proceeding, can the accused apply for leave to cross-examine after the case direction notice?
Yes, granted if court is satisfied it is in the interests of justice, in which case new joint case direction notice to be issued: s120
In a committal proceeding, does cross-examining a witness require leave?
Yes, to be determined with regards to whether the informant consents, but must be about an issue that relates and be relevant and justified: s124
What happens at a committal mention?
MC may determine the committal proceeding, offer a summary hearing (for offence that can be heard and determined summarily), determine applications for leave to cross-examine, fix a date for a committal hearing: s125
When must the committal mention occur?
Within 3 months for sexual offences, otherwise within 6 months: s126.
Is a committal case conference without prejudice?
Yes: s127
What happens at a committal hearing?
MC may offer a summary hearing (for offence that can be heard and determined summarily), hear oral evidence, and (if the committal hearing proceeds) must determine whether there is sufficient weight to support a conviction (s128) by asking for a plea (s144) and then discharging the accused, adjourn to enable informant to file a charge-sheet for a difference offence, or commit accused for trial (s141)
At a committal hearing, is cross-examination evidence restricted?
Yes, first leave must be obtained pursuant to the case direction notice procedure under s124, then at the commital hearing itself the cross-examination must be limited to the issues identified (s132) otherwise leave is required where the MC has to be satisfied an issue has been identified and that the cross-examination is justified (s132A).
What is the accused entitled to if committal for trial?
A copy of the depositions (being a transcript of evidence given in a committal and any statements admitted in the committal) a transcript of any recording admitted, and to examine any exhibits: s147.
If committed for trial (or on a direct indictment), what must the filed indictment contain?
Schedule 1 items: state the offence (and statute if relevant) and particulars, set out in ordinary language, identifying the people, documents and relevant property, plus the name of witnesses.
Can the indictment be amended?
Yes, unless it would cause injustice: s165
Can the prosecution discontinue an indictment?
Yes (but it’s not an acquittal and is without prejudice): s177
When can the court conduct a directions hearing during an indictment?
Any time (s179) where it can make or vary any direction or order (s181)
What pre-trial disclosure obligations are there for the prosecution in an indictment?
- Serve a summary of prosecution opening and notice of pre-trial admissions (s182)
- Continuing obligation of disclosure (s185)
- Prosecution notice of additional evidence (s188)
What pre-trial disclosure obligations are there for the defence in an indictment?
- Response to prosecution opening 14 days before trial: s183
- Statement of expert witness 14 days before trial: s189
- Notice of alibi witness 14 days after being committed: s190
When can the court order the pre-trial taking of evidence in an indictment?
If reasonably anticipated witness will be unavailable to give evidence at trial, where the parties agree, or if the court considers appropriate, but in any case must be in the interests of justice: s198
Can the accused ask for a sentencing indication in an indictment?
Yes, by application: s207 and 208, and if the accused pleads guilty the Court may not impose a more severe sentence: s209
When does arraignment occur and the trial begin?
When the court asks the accused whether they are the person named, and each charge is read out and asked whether they plead guilty or not guilty: s215. The trial begins if they plead not guilty on arraignment in the presence of the jury.