First Court Appearance
Because of the serious nature of the offence, the Police are required to serve a
brief of evidence upon you before you decide whether to plead guilty or not guilty.
The Court will normally allow the police 4-6 weeks to serve a brief of evidence
on your solicitor or you personally.
The court will normally allow 1 or 2 further weeks for you to discuss this evidence with your solicitor and decide whether you intend to plead guilty or not guilty.
Second Court Appearance
If after considering the brief of evidence carefully you decide to plead not
guilty, you will have to decide whether you want to cross examine any
witnesses in the police case at a committal hearing.
In the past, an accused person had a right to a committal hearing and could
cross examine each of the witnesses in the police case about almost any issue.
However, the law changed recently removing the right of an
accused to a committal hearing. A Magistrate can only order the attendance
of a victim of an offence involving violence, if special reasons are shown
why the alleged victim should, in the interests of justice be called to give
For every other prosecution witness, the accused must show substantial reasons in the interests of justice why the witness should attend to give evidence.
If you decide that you want to cross examine some or all of the police witnesses the court will adjourn your matter to another date for legal argument. The court may order that your solicitor and the prosecutor make written submissions to support their arguments.
If you decide not to cross examine any of the prosecution witnesses, the matter will proceed by way of paper committal.
Advantages & Disadvantages of a Committal Hearing
- You may be able to convince a Magistrate that there is no reasonable prospect that a jury would convict you of an indictable offence.
- Find out exactly what witnesses will say about an issue.
- The cross examination of key witnesses may highlight how weak the police case is. This may lead to the DPP deciding not to prosecute you further.
- Highlights the strengths and weaknesses in the police case.
- Highlights questions/issues that should not be asked at trial.
- Witnesses may give another version of the incident, inconsistent with a previous version or the version they give at trial.
- You have to disclose to the police the areas which you want to cross examine the witness and the reason for doing so.
- Each witness may be questioned by the prosecutor prior to the committal hearing. This may put a witness on notice that they will be cross examined about a specific issue.
- Extra cost – These costs may include drafting of written submissions, a court appearance to argue why at law you should have a committal hearing and the committal hearing itself.
- A witness will know what that are likely to be asked at your trial. They may be ready to explain deficiencies highlighted at the committal hearing.
- Time delay – depending upon the length of the legal argument and the length of the committal hearing electing to have a committal hearing could add up to 6 months to the time it takes to have your matter finalised.
No Committal Hearing
If you decide not to cross examine any witnesses or a Magistrate refuses to
direct the attendance of a witness you may choose to agree to dispense with the formalities of a committal hearing. The court may require you to complete a form to confirm that you waive any rights you have to a committal hearing. If you choose this course, you will be committed to trial to the
If you do not take this course, the prosecutor will tender a brief of evidence that contains all the evidence the police intend to rely upon at your trial. This process is referred to as a paper committal.
The Magistrate will read the evidence and decide firstly in his or her opinion whether the evidence is capable of satisfying a jury, that you have committed an indictable offence beyond a reasonable doubt. If the Magistrate is not satisfied, the Magistrate will dismiss the charge against you. If the Magistrate is satisfied, the Magistrate will then enquire whether you want to call any evidence or make any statement. Before you respond you will be given a caution that you do not have to say anything or call any witness.
The court must then be satisfied that there are reasonable prospects that a jury would convict you of an indictable offence. If the Magistrate is not satisfied, the Magistrate will dismiss the charge against you. If the Magistrate is satisfied, the Magistrate will commit you for trial at the District Court.
Legal Argument Section 91 Criminal Procedure Act
Submissions by the DPP and your solicitor
Normally, the DPP and your solicitor will discuss the grounds for the granting of a committal hearing and try and reach agreement as to which witnesses are to be cross examined and about what. If the DPP consent the Magistrate must order that the witnesses attend to be cross examined. If the DPP do not agree, then it will be necessary for your solicitor to argue why the court should order that witnesses attend a committal hearing to be cross examined.
What must be proved to cross examine witnesses
Section 91 of the Criminal Procedure Act sets out the test for the Magistrate to consider. The Magistrate may only order that a witness be cross-examined if there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
What must be proved to cross examine victims of violent offences
Section 93 of the Criminal Procedure Act sets out the test for the Magistrate to consider. The Magistrate must not order that an alleged victim of a violent crime be cross examined unless there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.
The following offences are offences involving violence:
(a) a prescribed sexual offence,
(b) attempts to murder,
(c) wounding etc with intent to do grievous bodily harm or resist arrest,
(d) infliction of grievous bodily harm,
(e) abduction or kidnapping,
Decision by the court
If the court does not make an order that a witness / alleged victim is to attend a committal hearing your matter will proceed by way of paper committal. The Magistrate will make a decision whether you should be committed for trial on the statements tendered. Your solicitor can make submissions why you should not be committed for trial and you may give evidence.
The Committal Hearing
The purposes of a committal hearing
The major purposes of a committal hearing are to attempt to have the charges dismissed by a Magistrate; to discover all of the evidence against you; and to find out further details surrounding the case so that you can prepare for your trial.
The nature of the hearing
Generally, you will be only permitted to cross examine witnesses about certain issues that have been told to the court. A committal hearing is not a full rehersal of the trial and is likely to last only a fraction of the time.
The Police Case
A solicitor employed by the DPP will appeat for the Police. They will call the witnesses that are required to give evidence. When the witnesses first give evidence, they are giving “evidence in chief”. Your solicitor may object to questions asked by the DPP solicitor in certain circumstances.
After the DPP solicitor has finished asking the witness questions your solicitor may cross examine the witness. After your solicitor has finished cross examining the witness the DPP solicitor will be able to clarify any answers in re examination. After all witnesses have given evidence the DPP solicitor will close the Police case.
The Magistrate can dismiss the charge after the police case
After all the prosecution evidence has been given the Magistrate must decide whether, the prosecution evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that you have committed an indictable offence. If the Magistrate does not believe the evidence would satisfy a jury, the Magistrate will dismiss the charges. If the Magistrate believes the evidence would satisfy a jury the hearing continues.
Warning before you give evidence A magistrate must give you a warning and an oppurtunity to answer the charge. The Magistrate will give you a warning that you do not have to give evidence and any evidence you give may be used against you at your trial.
The Defence Case
It is very rare for an accused to give evidence or call witnesses at a committal hearing. If you decide to give evidence or call a witness to give evidence, then the DPP solicitor may question you or your witness about any issue relevant to your case. They are not restricted in what they can cross examine you about. Unless you are very confident that the Magistrate will dismiss the charge against you there is very little to gain from giving evidence. At your trial the crown would look at what you said at the committal hearing and plan their cross examination of you.
The Magistrate can dismiss the charge after the defence case
After all the evidence is given the Magistrate must decide whether or not there is a reasonable prospect that a reasonable jury, properly instructed, would convict you of an indictable offence. If the Magistrate does not believe the evidence would satisfy a jury, the Magistrate will dismiss the charges. If the Magistrate believes the evidence would satisfy a jury, the Magistrate will commit you to the District Court for trial.
District Court Mentions
There may be many mentions of your matter in the District Court before you are given a hearing date. Generally, you do not receive a hearing date until you and the crown are ready to run a hearing.
At one of the court mentions, prior to a trial date being set you will be arraigned. At this time the court will read out the indictments (this includes information about the offences, similar to what is typed on the bottom of the Court Attendance Notice) for each offence and you will be asked whether you plead guilty or not guilty.
Empanelling the jury
Most criminal trials proceed before a judge and jury. It is possible to be tried before a judge alone. Where you have not elected to be tried before a judge alone, the trial is to be by a judge and 12 jurors. Jurors may apply to the judge to be excused. Your solicitor and the crown may each challenge 3 jurors. Where a juror is challenged the juror will not sit on the jury panel. The reasons that a particular person may be challenged by your solicitor and the crown are wide and varied.
The Crown opening
The Crown opens the case by giving an outline of the charges and the evidence the prosecutor intends to call.
The Defence opening
Your legal representative may make an opening address to the jury about matters that they think are appropriate. Sometimes they will address the jury that they should wait until they hear all the evidence before making their mind up about an issue.
The Crown must prove that you are guilty of the offence charged beyond a reasonable doubt. If the Jury has a reasonable doubt then they must dismiss the charge.
The Crown Case
The Crown Prosecutor who represents the Police will call witnesses to try and prove that you committed the crime. Your legal representative may object to questions asked by the Crown Prosecutor in certain circumstances.
After the Crown Prosecutor has finished asking the witness questions your legal representative may cross examine the witness. The purpose of cross examination is to confirm the points that support your case and to cast doubt on the witness‘ evidence about matters that incriminate you.
After your legal representative has finished cross examining the witness the Crown Prosecutor will be able to clarify any answers in re examination. After all witnesses have given evidence the Crown Prosecutor will close the Crown case.
Prima Facie Case
Before you are required to answer the Crown case, the Judge has to decide whether taking the Crown case at its highest you could be lawfully convicted of the offence. Your legal representative is able to make submissions to the Judge as to why you could not be lawfully convicted.
The Defence Case
If you intend to give evidence, then you normally give evidence first. Your legal representative will ask you a series of questions so that you give all relevant evidence. Try to relax and give evidence as you remember the events. Remember, rehearsed evidence often sounds artificial, so try and be natural.
After all witnesses you intend to call have given evidence, your legal representative will make submissions after the Crown Prosecutor upon the evidence given.
The Jury will make their decision on the evidence given. The jury will make their decision in the jury room away from you and the crown. It may take days or weeks for the jury to decide whether you are guilty or not guilty. If you are found not guilty you may be able to claim your legal costs in some limited cases. If you are found guilty then you will be sentenced.
The Judge will consider the facts and evidence presented by the Police and the evidence and submissions made by your solicitor when deciding the appropriate penalty to be imposed. The Judge will normally require a Pre-Sentence report before imposing a sentence.
These reports are prepared by an officer of the Probation & Parole service.
Matters are normally adjourned for 6 weeks for a full pre sentence report.
The officer from Probation & Parole will interview you and from this interview they will prepare a report that includes your comments about why you committed the offence and your background. It is important that you co-operate fully with the officer as the officer will make recommendations as to an appropriate sentence in their report.
The Courts in New South Wales can impose the following penalties: