Pre-trial Flashcards
How many directions hearing can be held? and till what stage?
According to s 179, the Court can conduct one or more directions hearings at anytime except during the trial.
What can happen at a directions hearing?
At a directions hearing, the court may make/vary any direction or order, for the fair and efficient conduct of the proceeding. According to s 181, the court may:
require A to advise if they’re legally represented and have $ continued representation for the trial;
require each party to advise of any pre-trial issues it seeks to raise and any pre-trial orders it seeks;
set a timetable for the hearing of pre-trial issues or applications for orders;
if relevant, require the parties to advise the court on the availability of the complainant and the accused for a special hearing, and direction that a special hearing be held;
require the parties to estimate the expected length of the trial;
require the parties to advise on the estimated number of witnesses, the availability of witnesses and any requirements of those witnesses or interpreters;
order a party to make, file or serve any written or oral material required for the proceeding;
order the P to file and serve a copy of any material P intends to rely upon at the trial;
determine objections relating to the disclosure of information or material by the P;
allow a party to amend a document it has prepared for the proceeding;
determine an application for a sentence indication.
A judge may also make any order or direction that can be made or decided before trial (s 181(3)).
* This allows a judge to make pre-trial orders and rulings on admissibility and issues of law under s 199 at a directions hearing.
What is summary of pros opening?
- Summary: the manner the Prosecution will put the case and the facts and circumstances being relied on to support a finding of guilt (s 182(2)).
What is notice of pre-trial admissions?
Pre-trial Ad: statements of the witnesses whose evidence including evidence of continuity, age etc. (s 182(3)).
What is the defence response?
- Summary Response: Must identify facts & circumstances with which issue is taken and the basis for the issue taken (s 183(2))
*
What is defence response to notice of pretrial admissions?
Pre-trial Ad Response: Must indicate what evidence, is agreed to be admitted as evidence without further proof and what evidence is in issue and the basis on which issue is taken (s 183(3))
Is the accused required to identify any witnesses?
NO - except for expert witnesses
* Not required to identify witnesses or whether the accused will give evidence (s 183(4))
What is the significance of pros opening and defence response?
The opening and response are significant documents:
* If a party (primarily the P with respect to its opening) wishes to depart from these documents, it must give notice under s 184.
* The parties must stick to the opening and response unless there are “exceptional circumstances”
(ss 224 and 225)
o change of legal practitioner does not constitute exceptional circumstances (ss 224 and 225)
* If the prosecution wants to call evidence not disclosed, it must seek leave under s 233.
* Can grant leave to a party to comment on a departure under s 233 only if relevant, permitted by another act and not unfairly prejudicial.
o E.g. s 43 JDA - If the P does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
Alibi notice - notice requirement
If the accused wishes to rely on alibi evidence, the accused must file an alibi notice within 14 days of committal
Expert evidence - notice requirement
If the accused wishes to call an expert witness, the accused must serve and file a copy of the report at least 14 days before trial.
What is the ongoing disclosure obligation?
P has a duty of ongoing disclosure any evidence which comes to light, must be handed over to D as soon as practicable (s 185). If P seeks to rely on it and it comes to light after the depositions have been produced, it must be served in a notice of additional evidence (s 188).
Notification of pre-trial issues?
S 200 provides that the parties should aim to notify the Court at least 14 days before the commencement of the trial of pre-trial issues (in practice any significant pre-trial issues, such as applications for severance, applications to exclude Records of Interview or major pieces of evidence, are usually flagged in the defence response). first notify the other party of the issue/order sought and then notify the court (s 200)
Can pre-trial issues be considered on the papers?
S 201 provides that pre-trial issues can be determined on the papers, and provides the considerations for whether this power should be exercised and the requirements on the parties
When can a sentencing indication be sought?
At any time after the indictment is filed but before the trial commences, the court may indicate that, if the accused pleads guilty to any charge on the indictment at that time or another charge, the court would be likely to impose on the accused—
(a) a sentence of a specified type; or
(b) a specified maximum total effective sentence.
What is discontinuance?
According to s 177(1), the DPP may discontinue a prosecution for an offence by announcing the discontinuance in court or filing in court written notice of the discontinuance, signed by the DPP. A prosecution may be discontinued at any time except during trial (i.e. after a jury has been empaneled s 210), whether or not an indictment against the accused has been filed (s 177(2)).
Discontinuance is not an acquittal (s 177(6)). An accused may be indicted on a charge in respect of which an earlier prosecution has been discontinued (s 177(7)).
If A is not in custody for any other reason, then A must be immediately released (s 178).
