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Changes to the Committal Process (NSW)

In 2018, the Criminal Procedure Act 1986 was amended so that committal hearings no longer exist in New South Wales. They have now been replaced with the new criminal processes of charge certification and case conferencing. Under the new system, when a person is charged with indictable offences, a senior prosecutor must review the evidence and confirm which charges will proceed. A mandatory case conference must be held between the prosecution and the defence. However, accused persons no longer have the right to test the strength of the prosecution case before a serious indictable matter is transferred to a higher court.

Why the changes to the committal process?

The main reason cited by the government for the changes is to reduce delays. The reforms are intended to promote productivity and ensure that indictable matters are effectively managed. The changes apply to all proceedings commenced in New South Wales after April 2018.

The old committal system

Under the old committal system, a person charged with an indictable offence in NSW had the right to a committal hearing. They could test the prosecution case by having prosecution witnesses attend court and subjected to cross-examination.

If the Magistrate was satisfied that the prosecution case is strong enough that a jury could return a verdict of guilty, they would commit the matter.

The matter would then be finalised in the Supreme Court or District Court either after a trial or after a plea and sentencing hearing. If the Magistrate was not satisfied that the evidence could support a finding of guilt, they could dismiss the charge. 

The new committal system

Under the new system, defendants charged with indictable offences no longer are entitled to a committal hearing. Instead, the Magistrate now simply oversees the procedural steps required under the Criminal Procedure Act 1986. This is a more limited role and involves ensuring a brief of evidence is served on the defence, ensuring that a charge certificate is filed and served on the defence, and ensuring that a case conference is held between the prosecution and the defence (if the defendant is legally represented) and that a case conference certificate is subsequently filed with the court. The accused must then enter a plea to each of the charges that are being proceeded with and the Magistrate will commit the matter to a higher court for trial or for sentence.

The brief of evidence

Under section 62, a brief of evidence must be served on the accused or on their lawyer. The brief of evidence must include:

  • All evidence that makes up the prosecution case;
  • Any other material the prosecution has that may reasonably be relevant to the accused’s case;
  • Any other material the prosecution has that would impact the strength of its case.

Charge certification

After the brief of evidence has been served on the defence, the prosecution must file a charge certificate. The charge sheet must specify:

  • The details of charges being proceeded with;
  • Any backup charges or related charges;
  • Any charges that were laid but will not be proceeded with
  • Any other matter prescribed by regulations.

The prosecution must certify that the evidence is enough to establish the accused is guilty of each element of each offence on the charge certificate.

Case conferencing

Prior to the case conference, a magistrate must explain the committal process to the defendant. The magistrate must also explain the sentencing discount scheme so that he or she understands the benefits of pleading guilty.

If the accused is represented, the parties must hold a case conference after the charge certificate has been filed. The proceedings will be adjourned for eight weeks to allow this to occur.

If the accused is unrepresented or pleads guilty before a case conference is held, no case conference is required. A case conference is not required in cases where the accused’s fitness to be tried is an issue.

Examining witnesses

After a charge certificate has been filed, a magistrate can direct the attendance at a committal proceeding of a witness whose evidence is referred to in the brief. Either defence or prosecution can make such an application. A magistrate may only make the direction that the witness must attend if satisfied that there is are substantial reasons why the person should give oral evidence. A magistrate may not direct the attendance as a witness of a complainant in a sexual offence matter if they are a cognitively impaired person or if they were under 16 when the offence allegedly occurred.

If you require legal advice or representation please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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