Criminal Procedure Flashcards
Difference between summary and committal proceeding?
Summarily: Generall lower end offences
s 56 of CPA Can be tried summarily where and offence has a maximum prison term of 2 years, or and election is made via Table 1 or 2 in Schedule 1.
Committal: More serious and could be indictable offences or summary offences where no election is made in Schedule 1 - table 1 & 2
Process of Indictable Offences - Commencing Proceedings… Explain?
Magistrate hears an indictable offence at a committal hearing they are simply there to ‘commit’ the trial. The prosecution makes the determination whether there is enough evidence for the accused to stand trial.
- Brief of Evidence - s 61
- Charge Certiifcate - s 66
- Case Conference - s 69-70
- Directions - Accussed to Give Evidence - s 82
- Witness Gives evidence - s 85
What are they?
As of the 30th of April 2018 Comm 2 Practice Direction replace Comm 1. It means that when a Magistrate hears an indictable offence at a committal hearing they are simply there to ‘commit’ the trial. The prosecution makes the determination whether there is enough evidence for the accused to stand trial – this take this process out of the decision of the magistrate, which previously only made a determination there was insufficient evidence in 1% of the cases.
Served Brief of Evidence:
The magistrate when committing the trial sets a date for the accused to be served the brief of evidence – s 61
Charge Certificate:
- DPP prepares this which states charges and any backup charges which certifies that there is sufficient evidence to establish each charge. – s 66
- File and served on accused nor more that 6 months after first return date of court attendance notice – s 67
Case Conference:
- After Charge Certificate is filed where accused is represented and pleads not guilty to at least one offence there is required to be a case conference – s 69
- Conference is to determine whether or not there are any charges where the accused wishes to plead guilty and to identify the agreed or disputed facts – s 70
- Usually held between the prosecutor and defence lawyer; defence counsel obtains instructions on pleadings of guilt and benefits of doing so s 70
- Certificate: after the conference the prosecutor prepares a Case Conference Certificate – s 74 which contains material in s 75 which includes – any offers that have been made by the prosecution and what have been accepted.
- Certificate details are not admissible except at sentencing, usually.
Directions Accused to Give Evidence:
- Magistrate has power to direct a witness to give evidence – s 82 if on application from prosecution or accused, if per sub (5) there is substantial reasons why in the interests of justice the witness should give oral evidence.
- Where one party applies and the other consents the magistrate must give the direction to give oral evidence – s 82(4)
- Exceptions are within s 83 – ie child, sexual servitude
Witness Giving evidence
- Must be Oral – s 85(1)
- Exceptions to oral: giving in written statement per s 86(1) where per sub (1)(a) accused and prosecutor both consent or (b) Magistrate is satisfied that it is within the interests of justice, the evidence should be given by statement.
- Audio on statement is possible sub (2)
- Applies despite the reality of not being able to cross examine the witness via s 85.
Costs
- Awarded per s 116/117 where there is circumstances of bad faith or charges brought without reasonable cause or where there is a different charge committed on the defendant that in the original court attendance notice
Explain general process of Summary Offences…
- Summary Proceedings
See also - CRIM 1 - Practice Note
When tried Summarily: s 56 Can be tried summarily where and offence has a maximum prison term of 2 years, or and election is made via Table 1 or 2 in Schedule 1.
Time limit: s 179 – within 6 months of offence, except where the offence Indictable or where a death has happened.
Defects: s 16 – in documentation doesn’t affect the proceedings
Service of brief of Evidence: s 183 – where pleading not guilty must be served within 14 days
- S 187 – can be dispensed with at the discretion of the court – applied by any part
Evidence: s 188 – not to be admitted if prosecution does not follow these rules, although per sub (2) the accused may consent to dispensing with rules.
Attendance: Not required if not on bail if they are legally represented,
Adjournment: s 187(4) Court may grant one or more adjournments for service of brief of evidence.
Open Court: - s 191 usually open, but maybe closed in sexual hearings – s 291, accused can consent to being open or court can open if in the interests of justice – sub(3)
Costs: 214 - Not normally awarded to defendant unless investigation was unreasonable or unjust; proceedings initiated without reasonable cause.
Indictable Offences Dealt Summarily:
- Election time limit – s 263 – cannot take place after facts are tendered or evidence presented by prosecution
Max penalty: is generally 2 years
Offences:
Schedule 1 –
Table 1: More serious; dealt with summarily unless election made by protection or accused.
Offences: Wounding; aggravated indecent assault; break and enter; stealing car; escape and other prison offences
Table 2: Less serious; Dealt with summarily unless election made by Prosecution only may.
Offences: Common assault; drug offences of small quantity – usually smaller scale offences than Table 1.
What is required for pre-trial disclosure?
Orders For Pre-Trial Disclosure
For the purposes of section 141 (1) (a), the prosecution’s notice is to contain the following:
(a) a copy of the indictment,
(b) a statement of facts,
(c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial,
(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial,
(c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript,
In the District Court, under Practice Note 9
- prosecution disclosure no later than five weeks before the date for trial;
- defence disclosure no later than 21days before the date set for trial
- prosecution response before the date set for trial.
In The Supreme Court, under revised Practice Note 2
- prosecution disclosure no later than 8 weeks before the trial date;
- defence response no later than 5 weeks before the trial date;
- prosecution response to the defence response no later than 3 weeks before the date for trial;
- pre-trial conference before the judge two weeks before the trial date
