What is a committal hearing NSW? A committal hearing, which is also known as an initial proceeding or preliminary examination, is held in the Local Court, and is used for the purpose of determining if there is sufficient evidence to send a defendant to trial in the District or Supreme Court.
Committal proceedings are proceedings before a magistrate for the purpose of committing (transferring) a person charged with an indictable offence for trial or sentence.
The committal hearing NSW aimed to determine whether there was sufficient evidence to justify a trial in a higher court. This article discusses committal hearing NSW. A committal hearing may involve oral evidence from some or all prosecution witnesses where prosecution witnesses attend court.
Committal Hearing NSW
Prior to 30 April 2018, in New South Wales (NSW), a defendant charged with a serious offence had the option to seek a committal hearing. But on 30 April 2018, significant changes took place, and presently, committal hearings are no longer available to defendants. The reason for this was to reduce delays in cases and ensure that parties can effectively manage cases.
The purpose of the committal hearing was for the defendant to test the strength of the case against them and to decide whether or not to plead guilty. It also allowed the prosecution to decide which charges will proceed and the Magistrate to consider the evidence given by the prosecution to establish a case against the defendant.
The Old Process for Committal Hearing NSW
Under the old system of committal proceedings, a person charged with an indictable offence had the right to a committal hearing.
At a committal hearing, a Magistrate would read and consider all the evidence the prosecution presented to establish the offence. The Magistrate had to look through the evidence without having to consider the potential defences. The Magistrate had to consider if the case itself could establish the guilt of the accused.
If the case is established at the committal hearing, the matter was committed (or transferred) to either the District Court or the Supreme Court for trial. If the Magistrate found that the prosecution could not establish the elements of an offence, the Magistrate can dismiss the charges.
The New Process in Committal Proceedings
While a Magistrate still 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.
Therefore, a person charged with an indictable offence must still have their matter committed to the District or Supreme Court for trial or sentence. However, the procedures have changed significantly.
Under the new system, defendants charged with indictable offences no longer have the right to a Committal Hearing. Instead, the Magistrate’s role is now limited to overseeing the procedural steps required under the Criminal Procedure Act 1986.
This involves:
- ensuring a brief of evidence is served on the defendant or their lawyer
- ensuring that a charge certificate is filed and served on the defendant or their lawyer,
- ensuring that a case conference is held between the prosecution and the defence (if the defendant is represented), and
- a case conference certificate is subsequently filed with the court.
The defendant must then enter a plea to each of the charges that prosecution is proceeding with and the Magistrate will commit the matter for trial or for sentence.
Brief of Evidence
A brief of evidence must be served on the defendant or their lawyer and must include:
- All material that makes up the prosecution case,
- Any other material the prosecution has that is reasonably capable of being relevant to the accused’s case, and
- Any other material the prosecution has that would impact the strength of the prosecution case.
Charge Certification
Once the brief of evidence has been served, the prosecution files a charge certificate, which must specify:
- The charges being proceeded with and their details,
- Any back up or related charges,
- Any charges that will not be proceeded with, and
- Any other matter prescribed by regulations.
Case Conference
A magistrate must explain the committal process to the accused prior to a case conference occurring. If the accused is represented, the defence and prosecution must hold a case conference after the charge certificate has been filed.
If the accused is unrepresented or pleads guilty to the charges before a case conference is held, then a case conference is not required.
Application to Attend Court
After a charge certificate has been filed, a magistrate can direct the attendance at committal proceedings of a person whose evidence is referred to in the brief. The person must attend court for the purpose of giving evidence and being cross-examined.
But a Magistrate can only do so upon an application by either the defence or prosecution. Furthermore, a Magistrate can only grant an application if both parties consent or if there are “substantial reasons” for the person concerned to attend.
Substantial Reasons
The law does not contain a fixed definition for circumstances that would amount to “substantial reasons”. Thus, an application will depend on its own set of facts and circumstances involved. Some examples, however, of “substantial reasons” include:
- cross-examination will likely undermine the credit of a significant witness, or
- cross-examination is necessary to avoid the defendant being surprised at trial.
Exclusions
An application cannot be made in relation to an alleged victim of a sexual offence matter who was under 16 years of age at the date of the alleged offence and under 18 at the date of the application.
In addition, the Magistrate must be satisfied that there are “special reasons” why certain witnesses need to attend to give evidence. An example includes witnesses of an alleged sexual offence.
The Importance of Seeking Legal Advice
Procedures for Criminal Law cases can be quite technical and confusing. A person charged with an offence may not know what to do or where to go. Thus, we highly advise you to seek legal advice on committal hearing NSW.
JB Solicitors has a leading team of experienced lawyers that can help with your situation. We offer legal services such as legal representation and specific legal advice on committal hearing NSW suited to your needs.
Do you have any more enquiries regarding committal hearing NSW? Contact us today.