This article was written by Trudie Cameron - Practice Director – Sydney
Trudie Cameron is the Practice Director of Criminal Law and is responsible for supervising and managing the New South Wales Criminal Law team in addition to her own caseload. Trudie is an accredited specialist in criminal law, practising exclusively in criminal and traffic law. Trudie defends clients charged with both state and commonwealth offences and appears on their behalf in...
Committal Hearings
In New South Wales, a person charged with a serious offence that was to be dealt with in the District Court could seek to have a ‘committal hearing’ in certain circumstances. On 30 April 2018 significant amendments were made to the legislation, overhauling this process and abolishing the ability for defendants to have a ‘committal hearing’.
What Was a Committal Hearing?
A ‘committal hearing’ was a hearing conducted by a Magistrate who would review the brief of evidence and/or certain evidence in the prosecution case in order to decide whether a person charged with an indictable offence should have their matter ‘committed’ (transferred) to the District Court or Supreme Court for trial and/or sentencing. Generally speaking, where a Magistrate determined that the evidence against an accused person was insufficient and warranted dismissal, the Magistrate could dismiss the charges against that person.
What is the New Process?
A person charged with a serious indictable offence, or an indictable offence which parties have elected to deal with on indictment (i.e. in the District Court), must still have their matter committed to the District or Supreme Court for trial and/or sentence. However, the processes and procedures surrounding how this occurs have been changed significantly. Committal hearings, as they were previously known, have been abolished.
Magistrates still have the power to manage and control proceedings for matters to be committed to the District or Supreme Court for trial and/or sentence, from the time the person is charged until there matter is committed. However, they are no longer required to make a decision about whether there is sufficient evidence and/or dismiss the matter prior to committal.
Application for Witness to Attend Court
An application can be made, by an accused person, to examine a prosecution witness during committal proceedings. Such an application can only be made, and granted, in certain circumstances. Under the legislation, a Magistrate may direct a person whose evidence is referred to in the brief of evidence, or has been referred to in other material provided to an accused person by the prosecution, to attend court for the purpose of giving evidence and being cross-examined. A Magistrate can only do so upon an application by either the prosecution or the accused person and can only grant the application if both parties consent, or if there are ‘substantial reasons’ ‘in the interests of justice’ that the person attend.
What are the Exclusions?
There are a number of exclusions in relation to such applications. For example, an application cannot be made in relation to an alleged victim of certain child sex offences who was under 16 years of age at the date of the alleged offence and under 18 at the date of the making of the application. Further, the Magistrate may also need to be satisfied that there are ‘special reasons’ why certain witnesses should be required to attend to give evidence. Examples include witnesses of an alleged sexual offence, vulnerable witnesses and alleged victims of violence.
What are ‘Substantial Reasons’?
There is no set definition or defined circumstances that amount to ‘substantial reasons’. Instead, each application will depend on its own facts and circumstances. Some examples might include where:
- cross-examination may result in the discharge of the defendant or lead to a successful no-bill application;
- cross-examination is likely to undermine substantially the credit of a significant witness; or
- cross-examination is necessary to avoid the defendant being taken by surprise at trial.
It is important to remember that even if ‘the application is successful and a witness attends court and is cross-examined resulting in significant damage to the
Other Options
Following the changes, it is still possible to argue that a matter is not supported by sufficient evidence to proceed to, or should not proceed to, trial and/or sentence. However this argument occurs with the Prosecution (the NSW ODPP or CDPP usually), rather than in court. A ‘No Bill’ application can be submitted to the DPP or CDPP, depending on who is prosecuting a matter, seeking that there be ‘no further proceedings’. If such an application is successful, the prosecution will cease prosecuting the matter and advise the court of such, marking the end to the matter.
It is also possible to make an application to the court for a temporary or permanent stay of proceedings. Such applications are very technical in nature and can be made for a number of reasons. Certain flaws or insufficiencies in the prosecution case may be able to form the basis for such an application.
If you require legal advice on committal hearings or any legal matter, please contact Armstrong Legal.