Obtaining a Committal
Normally, the Department of Public Prosecutions (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 consents, the magistrate must order that the witnesses attend a committal hearing 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 in committal proceedings?
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 in committal proceedings 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 in committal proceedings 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:
- prescribed sexual offence
- attempts to murder
- wounding etc with intent to do grievous bodily harm or resist arrest
- infliction of grievous bodily harm
- abduction or kidnapping
Decision by the court in relation to committal proceedings
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 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.
At the committal: The magistrate can dismiss the charge after the defence case
After all the evidence is given, the magistrate must decide whether or not, having regard to all the evidence, 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.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.