Criminal law changes result in abolished committal hearings

Criminal law changes result in committal hearings being abolished

On 30 April 2018 changes were implemented to the Criminal Procedure Act 1986 (NSW) which resulted in contested Committal Hearings being removed from the NSW justice system.

Previously, any person who had been charged with a serious criminal offence which was to proceed by way of Trial before the District or Supreme Courts of NSW was entitled to a Committal Hearing.

A Committal Hearing is a Hearing held before the Local Court of NSW prior to the matter proceeding to Trial. It was an opportunity for any person charged with a serious offence to ‘test’ the evidence of the prosecution and it required a Magistrate to decide whether there is enough evidence for the matter to proceed to trial before the District or Supreme Court of NSW.

A Committal Hearing required the Magistrate to be satisfied that a jury, who has been properly instructed, would find a person guilty of the offence beyond reasonable doubt.  If the Magistrate, after Committal Hearing, did not find that a jury properly instructed could find a person guilty, then the Magistrate had the power to dismiss the charge.

A new system has now been introduced in an attempt to stream line the committal process. In doing so however it has significantly eroded the rights of individuals charged with serious offences to have the matter dismissed in circumstances where the prosecution had charged an individual with a serious offence which the prosecution had limited/no prospects of successfully prosecuting.

To offset this, a new process called charge certification and case conferencing has been implemented. This process involves a senior prosecutor being required to review evidence and confirm the charges that will proceed as early as possible and will involve a mandatory criminal case conferencing between senior prosecutors and the defence.

The changes aim to have a senior prosecutor will review the brief of evidence as soon as it is served, and confirm (“certify”) the charges that will proceed. The aim is to ensure the person charged is charged with the most appropriate offence as early as possible.

Currently, there is no formal requirement for prosecution and defence lawyers to discuss a case before it progresses to trial. Under the reforms, senior lawyers for the prosecution and defence will be required to conference early and will be required to participate in a case conference. The person charged will be required to be available during the case conference to give instructions to their lawyers. The aim is to allow for meaningful discussion about the case, maximising opportunities for early guilty pleas and narrowing the issues to be dealt with at trial.

A new committal process will also be implemented. This is noted below:

1. First Step – Brief orders

• At the first step orders are to be made for NSW Police service of the brief on the person charged with an offence and the matter is to be adjourned for 8 weeks to allow for service.

2. Second Step – Brief service

• At the second step:
  • the prosecution is to confirm that the brief has been served; and
  • the matter is to be adjourned for 6 weeks for the prosecution to the review the brief and filed the “charge certificate” – confirmation of charges the prosecutor will proceed with.

3. Third Step – Charge certificate and criminal case conferencing

• At the third step, a charge certificate is to be filed by the prosecution.
• Unless a plea of guilty is entered the proceedings will be adjourned for a total of 8 weeks, with the expectation that a criminal case conference will occur within the first 6 weeks; and the case conference certificate is to be finalised, and any further charges are to be filed, within the remaining 2 weeks.

4. Fourth Step – Case conference certificate, amended charge certificate, and committal

• At the fourth step a case conference certificate along with any amended charge certificate is to be filed, and the person charged must enter a plea to the offence/s.
• Unless the Magistrate accepts a plea of guilty, the person charged will be committed for trial. Where the Magistrate accepts a plea of guilty, the accused will be committed for sentence.

There remains the opportunity, where appropriate to cross examine prosecution witnesses prior an individual being committed for trial.

Any person charged with a serious criminal offence should immediately seek legal advice.

At Turnbull Hill Lawyers we have assisted thousands of clients successfully defend matters before the Court. If you or someone you know has been charged with a criminal offence, please contact us.