Committal proceedings

Note:

All references to sections in this chapter are, unless otherwise stated, references to sections of the Criminal Procedure Act 1986.

Local Court Practice Note Comm 2 (PN Comm 2) sets out the procedures to be followed by magistrates for committal proceedings. See, in particular, the flowchart at Appendix A which identifies the key steps in the proceedings.

[28-000] Introduction

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 she or he is committed for trial or sentence, the magistrate is no longer required to make a decision about the sufficiency of the evidence before committal.

[28-020] Indictable offences

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 (NSW) [2021] NSWSC 333 at [63]–[66]; Criminal Procedure Regulation 2017, cl 117(2).

[28-040] Nature of, and steps involved in, committal proceedings

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

proceedings before a magistrate for the purpose of committing a person charged with an indictable offence for trial or sentence.

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):

(a) 

proceedings are commenced by the issuing and filing of a court attendance notice,

(b) 

a brief of evidence is served on the accused by the prosecutor,

(c) 

a charge certificate setting out the offences that are to proceed is filed with the Court and served by the prosecutor on the accused,

(d) 

if the accused is represented, one or more case conferences are held by the prosecutor and the legal representative for the accused,

(e) 

if the accused is represented, a case conference certificate is filed in the Court,

Note:

An unrepresented accused is not required to participate in a case conference: s 69(a). In such cases, the matter should be adjourned so the accused can obtain legal advice and/or representation.

(f) 

the accused pleads guilty or not guilty to each offence which is proceeding and the Magistrate commits the accused for trial (if the accused pleads not guilty) or sentence (if the accused pleads guilty).

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] NSWCCA 17 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:

  • sections 30 (change of venue), 36, 37–41 (representation, conduct of case, recording of evidence and adjournments), and 44 (case not to be proceeded with): s 58(a)

  • Part 3 (attendance of witnesses and production of evidence in lower courts) and Pt 4 (warrants) of Ch 4: ss 58(b) and (c).

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:

(a) 

the process of charge certification, case conferences and committal for trial or sentence; and,

(b) 

the sentencing discount scheme under Pt 3 of the Crimes (Sentencing Procedure) Act 1999 that applies in the case of a guilty plea in relation to State offences.

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 2 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 2, 5.1.

Information to be given to unrepresented accused — Table 1 offences

Section 265(1) Criminal Procedure Act provides as follows:

When a person charged with an indictable offence listed in Table 1 to Schedule 1 first appears before the Local Court in respect of the offence, the Court:

(a) 

is to address the person about the person’s rights to make an election and the consequences of not making an election, and

(b) 

is to give to the person a statement about the person’s right to make an election and the consequences of not making an election that is in the form of words prescribed by the regulations.

The obligation does not arise if the defendant is represented by a lawyer: s 265(1A).

The statement referred to in s 265(1)(b) is set out in Sch 1, Form 5, Criminal Procedure Regulation 2017.

[28-060] Accused to appear by audio visual link (AVL)

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.

[28-080] Serving the brief of evidence

A brief of evidence must be served for:

  • strictly indictable matters,

  • Table matters where an election has been made to proceed on indictment, and

  • Commonwealth matters proceeding on indictment.

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 2, 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 2, 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: ss 63(1)–(2). The prosecutor’s disclosure obligations are unaffected: s 61.

The brief must include copies of the following:

  • all material forming the basis of the prosecution case,

  • any other material reasonably capable of being relevant to the accused’s case, and

  • any other material that would affect the strength of the prosecution case: s 62(1).

    Note:

    The Office of the Director of Public Prosecutions (NSW) and the NSW Police Force have agreed to a Protocol for the contents of the brief of evidence which identifies when evidence should be provided in admissible form. The Commonwealth Director of Public Prosecutions has also published guidelines for its partner agencies concerning the types of evidence that should be obtained in admissible form.

[28-100] Charge certificates

The prosecutor must file and serve a charge certificate once the brief of evidence has been served: s 67(1). The matter will be adjourned to enable this to be done in accordance with PN Comm 2, 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(2)–(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 the Regulation and must be filed and served within six months of the first return date: s 67(2); Criminal Procedure Regulation 2017, cl 9D.

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

  • specify the relevant offences and their details

  • specify any back up or related offences

  • if relevant, specify any offences that will not proceed, and

  • contain any other matter prescribed by the regulations: s 66(1).

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).

Failure to file charge certificate

If the charge certificate is not filed in the specified time, the magistrate must discharge the accused or adjourn the proceedings: s 68(2). In determining the appropriate action the interests of justice must be considered: s 68(3).

If a warrant has been issued because the accused failed to appear, the 6 month period for filing the charge certificate is extended by the number of days between the issue of the warrant and the accused being brought before the court: s 68(4).

[28-120] Case conferences

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 8 weeks to enable a case conference to occur and for the case conference certificate to be filed: PN Comm 2, 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: ss 73(1), 73(2).

When a case conference is NOT required

A case conference is not required if the accused:

  • is unrepresented, or

  • pleads guilty to the offences and the plea is accepted by the magistrate before the case conference is held, or

  • is committed for trial under Div 7 (when unfitness to be tried is raised): s 69.

Obligations of accused’s legal representative

The accused’s lawyer is obliged to obtain instructions concerning the case conference and must explain to the accused the various matters identified in s 72(2) including the effect on the sentencing discount if the guilty plea is entered at different stages of the proceedings: s 72.

Completing and filing case conference certificates

After a case conference has been held, a case conference certificate must be completed and filed by the date ordered by the magistrate: s 74(1). The certificate must comply with Form 1B of the regulations: Criminal Procedure Regulation 2017, cl 9G.

The prosecutor and the accused’s legal representative must ensure the case conference certificate complies with the requirements of the Act and is completed and signed before the date set: ss 74(3), (4).

Where more than one case conference is held, the certificate must be filed after all the case conferences are completed: s 74(2). Section 75 identifies the matters which need to be addressed by the parties in the certificate. Although magistrates do not see the certificate, where there have been lengthy plea negotiations, it may be prudent to enquire with the parties that all offers, including defence offers, have been recorded in the certificate. See Ke v R [2021] NSWCCA 177 where a 25% discount was allowed even though a rejected plea offer by the accused before committal was not recorded in the certificate.

When a case conference certificate is not required

A certificate is not required if all the offences to which the proceedings relate are to be dealt with summarily, or when the offences are not proceeding to committal: s 74(5).

Plea offer after certificate filed but before committal

A plea offer can be made after the case conference certificate has been filed but before committal. Such an offer is treated as if it formed part of the case conference material: s 77(1)–(2). Further plea offers must be made in writing, served on the other party and filed with the court: s 77(1). A plea offer made in these circumstances must be annexed to the case conference certificate: s 77(3).

Confidentiality of case conference material

Generally, case conference material is not admissible in any proceedings: s 78(1). Matters in case conference certificates are treated as confidential: s 79. The disclosure of any information during or in relation to the case conference is not a pre-trial disclosure for the purposes of the Crimes (Sentencing Procedure) Act 1999, s 22A: s 81.

Other than in the proceedings identified in s 78(2), a case conference certificate cannot be required to be produced in any proceedings: s 78(3).

Failing to fulfil case conference obligations

If the magistrate is satisfied that a case conference certificate has not been filed by the specified date due to an unreasonable failure by either party, the magistrate may make orders set out in s 76. Actions that may warrant a magistrate making such orders include unreasonable failures to:

  • participate in a case conference, or

  • complete or file the case conference certificate: s 76.

If a prosecutor has unreasonably failed to fulfil these obligations, the magistrate may discharge the accused or adjourn the committal proceedings: s 76(2).

If the accused’s legal representative has unreasonably failed to fulfil his or her obligations, the magistrate may commit the accused for trial or sentence as if a case conference were not required, or adjourn the proceedings: s 76(3).

In determining whether to take such action, the magistrate must consider the interests of justice: s 76(4). To determine the appropriate action, it may be necessary for the magistrate to consider the contents of the case conference certificate which will be kept by the court in a sealed envelope. It is not necessary to examine the material unless an issue has been raised concerning non-compliance with the case conference obligations.

[28-140] Examining prosecution witnesses during committal proceedings — ss 82–85

Section 82 provides:

  • A magistrate may direct the attendance at the committal proceedings of a person whose evidence is referred to in the brief or who has been referred to in other material provided by the prosecution to the accused. The direction may be made following application by the accused or the prosecutor: s 82(1).

  • The magistrate must give the direction if an application is made by the accused or the prosecutor and the other party consents to the direction being given: s 82(4).

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

Test for direction under s 82

A direction may only be made if the magistrate is satisfied there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence: s 82(5). The principles to be applied in deciding whether there are substantial reasons in the interest of justice were summarised in Sim v Magistrate Corbett [2006] NSWSC 665, per Whealy J, by reference to the test for the previous s 91, at [20] as follows:

1. 

The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.

2. 

The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.

3. 

The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.

4. 

In relation to matters falling within s 91 Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.

5. 

The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.

6. 

Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.

7. 

Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.

8. 

The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.

Note:

For cases regarding substantial reasons, see Murphy v DPP [2006] NSWSC 965; Sim v Magistrate Corbett [2006] NSWSC 665; McKirdy v McCosker (2002) 127 A Crim R 217; Lawler v DPP (2002) 56 NSWLR 1; Losurdo v DPP (unrep, 10/3/98, NSWSC) per Hidden J; Hanna v Kearney (unrep, 28/5/98, NSWSC) per Studdert J; DPP v Losurdo (1998) 44 NSWLR 618.

When a direction cannot be given

A direction may not be given requiring the attendance of the complainant in proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Ch 6 Pt 6): s 83(1).

Nor may a direction be given to require the attendance of a complainant in proceedings for a child sexual assault offence if the complainant was under 16 years old when the alleged offences were committed and is under 18 years old at the time of making the application: s 83(2). The definition of a child sexual assault offence extends to Commonwealth offences which correspond to the offences identified in s 83(3)(a)–(c) or an offence prescribed by the regulations: s 83(3)(d). Section 83(3)(d) only applies to proceedings which commenced after 1 December 2018: Sch 2, Pt 37, cl 110.

Excluded witnesses under s 84

Section 84 provides that a direction may not be given in the following circumstances:

  • to direct the attendance of an alleged victim of an offence involving violence the subject of the committal proceedings (even if the parties to the proceedings consent) unless the Magistrate is satisfied there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence: s 84(1)

  • to direct a vulnerable person whose evidence is referred to in the brief of evidence to give evidence orally unless:

    (a) 

    the Magistrate is satisfied there are special reasons why the vulnerable person should, in the interests of justice, attend to give evidence, or

    (b) 

    the prosecutor consents: s 84(1A)

  • to direct the attendance of a sexual offence witness (even if the parties to the proceedings consent) unless the Magistrate is satisfied there are special reasons why the sexual offence witness should, in the interests of justice, attend to give evidence: s 84(1B).

Despite s 85(4) (see below), the Magistrate must not allow a person who is an alleged victim of an offence involving violence to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless satisfied there are special reasons why, in the interests of justice, the person should be cross-examined in respect of those matters: s 84(5).

The “offences involving violence” are set out in s 84(3). An indictable offence that may be dealt with summarily is not an “offence involving violence”: s 84(4).

The requirement of “special reasons” in s 84(1) is a more stringent test than that of “substantial reasons”: Tez v Longley (2004) 142 A Crim R 122 (by reference to the predecessor provision in s 93(1)). See also McNab v DPP (NSW) [2021] NSWCA 298 at [59], [97] (although the Court of Appeal in that case was considering those expressions in the context of s 19(1) Crimes (Appeal and Review) Act 2001). See further below.

The nature of “special reasons” in the interests of justice was considered in a number of decisions concerning the predecessor provision in s 93. Something more than a disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. It would be necessary to show that there would be a real risk of an unfair trial should oral evidence not be permitted and that the prospect of prejudice or possible prejudice should be shown to be beyond the ordinary: Murphy v DPP [2006] NSWSC 965. In Murphy, Whealy J stated at [44]:

Where, however, significant care must be taken is in the arena of allegedly inconsistent statements or versions from a complainant or a witness. I accept that where the victim has given more than one version of an alleged offence and those versions are materially inconsistent, this may warrant the alleged victim’s attendance for cross-examination under the section. It will not follow automatically, however, that the section has been satisfied in such a circumstance … Where alleged inconsistencies result in a clear situation in which a defendant simply cannot know the case which he has to meet, the inconsistency may be elevated to a higher plane, such that the statutory hurdle may have been cleared.

In McNab v DPP, above, the court considered the distinction between using the phrase “special reasons”, which applied when considering whether victims of offences of violence should be called to give evidence on a conviction appeal, and “substantial reasons”, for other witnesses (Crimes (Appeal and Review) Act 2001, s 19(1)). Basten and McCallum JJA (Bell P agreeing) concluded that the intention of using the expression “special reasons” was to provide additional protection to the relevant victim/s and that, for reasons to be “special”, they should be exceptional and not apply generically to that category of witness and offence: at [59], [97].

Note:

For other cases regarding “special reasons”, see Murphy v DPP [2006] NSWSC 965; DPP v O’Conner (2006) 181 A Crim R 294; DPP v Rainibogi [2003] NSWSC 274; Lawler v DPP (2002) 56 NSWLR 1; O’Hare v DPP [2000] NSWSC 430; Faltas v McDermid (unrep, 30/7/93, NSWSC) per Allen J; Kennedy v DPP (1997) 94 A Crim R 341; B v Gould and DPP (1993) 67 A Crim R 297; Foley v Molan (unrep, 20/8/93, NSWSC) per Levine J.

Vulnerable witnesses in Commonwealth committal proceedings

Section 15YHA of the Crimes Act 1914 (Cth) provides that “vulnerable witnesses” cannot be cross-examined at committal proceedings. This applies to a child witness in particular child proceedings (listed in s 15Y(1)), a vulnerable adult complainant in proceedings involving slavery or human trafficking offences (see s 15YAA and the offences listed in s 15Y(2)), or a special witness (see s 15YAB) for whom an order under s 15YAB(3) is currently in force: s 15YHA(2).

An adult is not a vulnerable adult complainant if they inform the court they do not wish to be treated as such: s 15YAA(2).

This provision applies to proceedings commenced on or after 20 July 2020.

Manner in which evidence to be given

Generally, the accused must be present when evidence is taken: s 87(1). However, a magistrate may excuse the accused from attending if she or he is legally represented: s 87(2).

Prosecution witnesses who are directed to attend must give evidence orally: s 85(1). However, s 86 permits evidence to be given by way of a written or recorded statement if:

(a) 

the accused and prosecutor consent, or

(b) 

the magistrate is satisfied there are substantial reasons why, in the interests of justice, the evidence should be given by a statement.

While witnesses may be examined and cross-examined, the magistrate must not allow a witness to be cross-examined about matters that were not the basis of the reasons for giving the direction unless satisfied there are substantial reasons why, in the interests of justice, the person should be examined about those matters: s 85(4).

[28-160] Committal for trial or sentence – Div 8, ss 95–98

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).

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: ss 97(2), (5). 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] NSWCCA 17 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.

[28-180] Procedure when unfitness to be tried raised during committal proceedings — ss 93–94

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).

[28-200] Costs — ss 116-120

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.

[28-220] Alibi defence

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.

[28-240] District Court video link

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.