Local Court Bench Book — Committal proceedings

Committal procedures were changed as a result of amendments to the Criminal Procedure Act 1986 by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 which commenced on 30 April 2018. A primary purpose of the reforms, as they relate to committals, is to reduce delays in indictable cases being finalised in the District Court. The Attorney General said, during the Second Reading Speech, that the reforms would do this “by improving productivity and ensuring that cases are effectively managed”: NSW, Legislative Assembly, Debates, 11 October 2017, p 6.

It is the role and function of the Director of Public Prosecutions to determine whether a person should be tried upon indictment and the particular charge: s 7, Director of Public Prosecutions Act 1986. As a result of these amendments, the prosecutor must also certify the evidence available is capable of establishing the elements of each offence the subject of the proceedings: s 66(2).

Therefore, while a magistrate retains the power to manage committal proceedings from the time an accused is charged until they are committed for trial or sentence, the magistrate is no longer required to make a decision about the sufficiency of the evidence before committal.

An indictable offence may be a strictly indictable offence or an indictable offence as provided in the Criminal Procedure Act, s 260. The Act provides that an offence listed in Table 1 of Sch 1 of the Act is an indictable offence which is to be dealt with summarily unless the prosecuting authority or the person charged elects otherwise.

An offence listed in Table 2 of Sch 1 is an indictable offence which is to be dealt with summarily unless the prosecuting authority elects otherwise.

For Table 1 and Table 2 offences, s 263(1) provides an election must be made within the time fixed by the Local Court, unless special circumstances exist and leave is granted: s 263(2). However, an election may not be made, in the case of a not guilty plea, after the taking of prosecution evidence in the summary hearing or, in the case of a guilty plea, after the presentation of the facts by the prosecution: s 263(3). In relation to the summary disposal of indictable offences under Ch 5, an election is made either orally or in writing to the Local Court. If it is not made in this manner, an election has not been made: Johnston v DPP [2021] NSWSC 333 at [63]–[66]; Criminal Procedure Regulation 2017, cl 117(2).

Committal proceedings are defined in s 3(1) as:

Committal proceedings are generally conducted by a magistrate in open court: ss 56(1), 57(1). The following steps during the committal proceedings are identified in s 55 (emphasis added):

The magistrate’s role is limited to overseeing the various steps identified in s 55 and to ensuring the necessary procedural steps have been completed before committing the accused for trial or sentence: NSW, Legislative Assembly, Debates, 11 October 2017, p 6. That is, it is essentially a supervisory role, intended to ensure there has been compliance with the procedural regime: Black v R (2022) 107 NSWLR 225 at [7].

The magistrate may fix days for the purpose of taking steps or doing other things during the committal proceedings: s 56(2).

Subject to “any necessary modification” and any provision in Ch 3 Pt 2, the following provisions also apply to committal proceedings:

Subject to one limitation addressed below, s 59(1) of the Act requires a magistrate to give the accused an oral and written explanation of the following:

An oral explanation of the committal process is not required if the accused is legally represented: s 59(1)(b).

The explanation must be given after a charge certificate is filed and before the first day on which a case conference is held. If a case conference is not required to be held (see further at [28-120]), then the explanation must be given before the accused is committed for trial or sentence: s 59(2).

Note:

A magistrate is not required to explain the sentence discount scheme when the offences involved are Commonwealth offences: s 59(4).

Clause 9A of the Criminal Procedure Regulation 2017 sets out the suggested form for the oral explanation of the committal process. The written explanation is set out in cl 9B.

PN Comm 3 sets out in detail the procedures to be followed during committal proceedings. It provides timetables for the preparation and service of the brief of evidence, filing of charge certificates, case conferences and filing of case conference certificates.

Committal proceedings are to progress in accordance with the identified timetable unless the court is satisfied departure from the timetable is in the interests of justice: PN Comm 3, [5.1].

The court must comply with the provisions of s 5BB(1) Evidence (Audio and Audio Visual Links) Act 1998. This section has the effect that upon the initial appearance of an accused person in custody, if bail is refused, the person must appear by AVL on the next occasion unless the court otherwise directs. There is no requirement for the accused person or the legal representative to consent to this course. (This provision does not apply to accused persons attending court cells in custody for the purposes of attending a conference).

Where facilities exist to enable the appearance of the accused persons in custody via AVL, the technology must be utilised. The court papers should be clearly marked AVL to ensure such accused persons appear via AVL.

A brief of evidence must be served for:

A brief of evidence will not be ordered in a Table matter unless the court is informed the accused has pleaded not guilty: PN Comm 3, [4.1].

Orders will be made for the service of the brief of evidence on the accused or their legal representative on the first return date in accordance with PN Comm 3, [7.1]. The brief must be served on or before the day specified by the magistrate (s 61(1)) together with copies of any proposed exhibits or, if it is not practicable to provide copies, a notice relating to the inspection of them (s 64).

The material in the brief may, but is not required to, be in admissible form: s 62(2). Removing the requirement that evidence be in admissible form is intended to facilitate early service of the brief: NSW, Legislative Assembly, Debates, 11 October 2017, p 7.

Relevant material obtained by the prosecutor after service of the brief must be served as soon as practicable: s 63(1)–(2). The prosecutor’s disclosure obligations are unaffected: s 61.

The brief must include copies of the following:

A magistrate can only rely on the advice of the parties as to whether a brief of evidence is “complete” or “compliant” as it is not a function of the Local Court to investigate its contents: Belkheir v DPP [2023] NSWSC 1233 at [59]. If an accused takes issue with compliance with brief service orders and whether charge certification can proceed, the magistrate is to consider what action to take pursuant to s 68(2): Belkheir v DPP at [60]; see [28-100] Charge certificates, below.

A magistrate has an implied power to make a restricted retention order (RRO), if requested by the prosecution, which restrains the defendant from retaining copies of parts of the brief of evidence: Commissioner of Police v Walker [2023] NSWSC 539 at [61]–[62], [80], [82]; s 61(1), (2); BUSB v R (2011) 80 NSWLR 170 at [25]–[34]. A RRO may be necessary where a serious matter is not prosecuted or prosecution evidence is weakened as no other appropriate accommodation can be made for the safety of prospective witnesses: Commissioner of Police v Walker at [80]. Whether such an order is made and how it is framed are determined by balancing competing public policy considerations, including the accused’s rights, and can be crafted to solve issues in a particular case: Commissioner of Police v Walker at [72], [80]; HT v The Queen (2019) 269 CLR 403.

The prosecutor must file and serve a charge certificate by the date set by the magistrate, which is after the service of the brief of evidence and “not later than 6 months after the first return date for a court attendance notice in the committal proceedings”: s 67(1), (2); see also Belkheir v DPP [2023] NSWSC 1233 at [58]. The matter will be adjourned to enable this to occur in accordance with PN Comm 3, [8.1].

A later day may be set if the accused consents or if the magistrate considers doing so is in the interests of justice: s 67(3). When determining whether or not it is in the interests of justice, the complexity of the proceedings is a relevant consideration: s 67(4).

The charge certificate must be set out in accordance with Form 1A of cl 9D Criminal Procedure Regulation 2017.

The charge certificate must relate to the offences set out in the CAN and must:

The prosecutor must certify the evidence is capable of establishing each element of the offences the subject of the proceedings: s 66(2). If the prosecutor determines that other offences are to be included in the proceedings an amended charge certificate must be served and filed before the accused is committed for trial or sentence: s 67(5).

After a charge certificate has been filed and before a case conference is held a magistrate must provide the accused with an oral and written explanation of the committal process and the sentencing discount scheme in Pt 3 of the Crimes (Sentencing Procedure) Act 1999: see [28-040], above.

Generally if an accused is represented the prosecutor and the accused’s legal representative must hold a case conference after the charge certificate has been filed: ss 70(4), 71(1). The proceedings will be adjourned for eight weeks to enable a case conference to occur and for the case conference certificate to be filed: PN Comm 3, [9.2(a)].

There is no limit on the number of case conferences which may be held: s 70(5).

The initial case conference must be held in person or by audio visual link (AVL): s 71(2). However, an initial case conference may be held by telephone if the magistrate is satisfied there are exceptional circumstances which render it impracticable to hold the conference in person or by AVL: s 71(3). Subsequent case conferences may be held via telephone: s 71(2).

A further case conference may be held after an amended charge certificate is filed but is not required: s 70(6).

Separate case conferences must be held for jointly accused persons, unless the prosecutor and each accused consent to a joint conference and provided a charge certificate has been filed for each accused: s 73(1), 7(2).

Section 82 provides:

An application can only be made after the charge certificate has been filed: s 82(3).

The magistrate must commit the accused for trial or sentence after the case conference and charge certificates have been filed: ss 95(1), 97(3). However, a magistrate may commit an accused for sentence before a charge certificate is filed if the prosecutor consents, or if a charge certificate has been filed but no case conference has been held: s 95(2). Before committal, the magistrate must ascertain whether or not the accused pleads guilty to the offences being proceeded with: s 95(4). It is mandatory to make the inquiry: Coles v DPP [2022] NSWSC 960 at [26]; Tuxford v DPP [2023] NSWSC 1300 at [13]. A failure to do so has the potential to impact the sentencing discount subsequently available to an offender on sentence: Coles v DPP, above, at [27]–[28]. Although the Local Court is a very busy forum, it is important a magistrate takes the time to know precisely what offences a defendant is pleading guilty and not guilty to: Hijazi v DPP [2022] NSWSC 1218 at [18].

A magistrate must commit an accused for trial unless they accept a guilty plea, in which case the accused must be committed for sentence to the District or Supreme Court: ss 96(1), 97(6). An accused can plead guilty at any time during the committal proceedings: s 97(1). A magistrate may accept or reject a guilty plea but if a guilty plea is rejected, the proceedings continue as if the accused had not pleaded guilty: s 97(2), (5).

Where there is a disagreement between the parties as to whether an accused should be committed for trial or sentence on the basis of a factual dispute, the court must determine whether the dispute relates to “essential facts” (the elements of an offence), which requires a trial, or “mere facts”, where the dispute can be resolved on sentence: Hamilton v DPP [2020] NSWSC 1745. In Hamilton v DPP, the magistrate refused to commit the accused for sentence although he indicated an intention to plead guilty to a charge of detain for advantage contrary to s 86(1)(b) Crimes Act 1900 because there was a dispute as to the purpose of the detention. The magistrate accepted a prosecution submission that if the accused did not plead to the charge as certified then he had to be committed for trial. Justice Button held that in doing so the magistrate erred because, while obtaining an advantage was an element of the offence to be proved beyond reasonable doubt, the nature of the advantage was not an element or essential fact and therefore did not need to be proved: Hamilton v DPP at [65], [115]. The accused should have been committed for sentence.

In circumstances where an accused has been committed for sentence, a judge of the District or Supreme Court may order that the committal proceedings continue before a magistrate if it appears to the judge that the facts do not support the offence to which the accused pleaded guilty, the prosecution requests the order be made, or for any other reason the judge thinks fit to do so: s 101(1). The committal proceedings then continue as if the person had not pleaded guilty: s 101(2).

If the prosecution propose to proceed to trial on a principal count, a magistrate should not accept a guilty plea to any alternative count notwithstanding the implied discretion in s 97(2): Black v R (2022) 107 NSWLR 225 at [49]; see also Rothman J’s observations in Williams v R [2022] NSWCCA 15 at [109]–[113] which are to similar effect.

Bail should be considered in the usual way.

The court should consider whether a pre-sentence report is required. Where this is indicated, the accused should be directed to report to the relevant Community Corrections Office within seven days and the necessary notations made on the court file.

An accused who is unrepresented must not be committed for trial or sentence unless the magistrate is satisfied the accused has had a reasonable opportunity to obtain legal representation for, or legal advice about, the committal proceedings: s 98.

Chapter 3, Pt 2, Div 7 deals with the procedures to be followed when an accused’s fitness to be tried is raised.

The question of unfitness may be raised by either party, or by the magistrate, at any time during the committal proceedings. If satisfied the question has been raised in good faith, the magistrate may commit the accused for trial: s 93(1)–(2). Before doing so, the magistrate may require a psychiatric or other report be supplied by either party: s 93(3).

The accused can only be committed for trial under s 93 if the charge certificate has been filed: s 94.

If an accused is subsequently found to be fit to be tried, an order may be made, remitting the matter to a magistrate so a case conference can be held: s 52 Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The matter may also be remitted to a magistrate for the holding of a case conference if the court is satisfied that the question of the accused’s unfitness is not going to be raised in the proceedings: s 52(4). Once the matter has been remitted, the proceedings are taken to be a continuation of the original committal proceedings: s 52(5).

If a an accused person is discharged, or the matter is withdrawn, or if committed for a different offence to that originally before the court, costs in favour of an accused person may be awarded: ss 116–117. See commentary CPP at [2-s 116] and following. Costs may also be awarded in favour of a defendant or the prosecutor on an adjournment if satisfied a party has incurred additional costs because of unreasonable conduct or delay by the other: s 118. See commentary CPP at [2-s 118.1] and following.

It is important for the magistrate to ensure that the appropriate form in relation to an alibi defence is served upon the accused person by the registrar of the court. Proof of such service may be important if the accused person seeks to raise an alibi defence at his or her trial, not having been given the necessary notice. If the conduct of the committal indicates that an alibi defence will be raised, it may be appropriate to give some further explanation as to the contents of the form and the obligations placed on the defendant.

If the defendant is committed for trial, the magistrate should consider the question of bail in the usual manner.

The District Court has video conference facilities available to enable a video link between the court and various NSW correctional centres, including the Metropolitan Remand and Reception Centre at Silverwater. The links are designed to reduce unnecessary transportation of prisoners to and from court.

The Chief Judge requests that magistrates, upon a matter being committed for trial or sentence to the Sydney District Court, give represented accused persons in custody the option of appearing in person or by utilisation of the video link for the purpose of their first appearance in the District Court.

If an accused wishes to appear in person then the magistrate is to make normal orders for committal to the District Court with the result that they will be brought to the Downing Centre on the day of the first mention.

If the accused wishes to be heard by way of video link, then the magistrate is to make the normal orders for committal to the District Court, but is to note that the matter is to proceed by way of video link, further requesting that the person be in custody at Silverwater on the listed date.

Unrepresented prisoners are required to appear at the District Court on the first mention listing.