Criminal Procedure Act Flashcards
Chapter 2 – General provisions (ss 5–44) - Part 1 – Offences (ss 5–14A) (ss 5–14A)
5 Certain offences to be dealt with on indictment
6 Certain offences to be dealt with summarily
7 Certain summary offences may be dealt with by Local Court
8 Prosecution of indictable offences
9 Name in which prosecutions may be instituted
10 Indictment of bodies corporate
11 Description of offences
12 Short description of certain offences
13 Venue in indictment
14 Common informer
14A Proceedings for offences commenced by officers of ICAC or LECC
Chapter 2 – General provisions (ss 5–44) - Part 2 – Indictments and other matters (ss 15–27)
15 Application of Part
16 Certain defects do not affect indictment
17 When formal objections to be taken
- must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.
- court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.
18 Judgment on demurrer to indictment
19 Traversing indictment
- whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge: Conroy v Conroy (1917) 17 SR (NSW) 680.
20 Amendment of indictment
- by the prosecutor with the leave of the court, or with the consent of the accused.
21 Orders for amendment of indictment, separate trial and postponement of trial
22 Amended indictment
23 Indictment may contain up to 3 similar counts
24 Accessories may be charged together in one indictment
25 Indictment charging previous offence also
26 Description of written instruments
27 Supreme Court rules may prescribe forms of indictments
Chapter 2 – General provisions (ss 5–44) - Part 3 – Criminal proceedings generally (ss 28–44)
28 Application of Part and definition
29 When more than one offence may be heard at the same time
- in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character, unless the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.
30 Change of venue
- if that a fair or unprejudiced trial cannot otherwise be had, or (b) that for any other reason it is expedient to do so.
31 Abolition of accused person’s right to make unsworn statement or to give unsworn evidence
32 Indemnities
33 Undertakings
- to not use in evidence against that person, other than proceedings in respect of the falsity of evidence given by the person.
34 Practice as to entering the dock
35 Right to inspect depositions on trial
36 Representation and appearance
36A Representation and appearance in penalty notice matters
37 Conduct of case
38 Hearing procedures to be as for Supreme Court
- the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence. Other than in the Supreme Court for an indictable offence.
39 Recording of evidence
40 Adjournments generally
- a matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment [see s 19].
- a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.
41 How accused person to be dealt with during adjournment
42 Witnesses in mitigation
- court may summon witnesses and examine them on oath in respect of any matter in mitigation of the offence.
43 Restitution of property
- the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession.
44 When case not to be proceeded with: accused person to be released from custody
Chapter 3 – Indictable procedure (ss 45–169)
Part 1 – Preliminary (ss 45–46)
45 Application of Chapter and definitions
- Chapter applies to or in respect of proceedings for indictable offences (other than indictable offences being dealt with summarily).
46 Jurisdiction of courts
- SC has jurisdiction in respect of all indictable offences.
- DC as jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section. A plea to the jurisdiction usually involves an offence alleged to have been committed beyond the territorial borders of New South Wales: MacLeod v A-G (NSW)
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 1 – Commencement of proceedings (ss 47–54)
47 Commencement of committal proceedings by court attendance notice
- if, however, an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act.
48 Commencement of proceedings by police officer or public officer
49 Commencement of private prosecutions
- magistrate is required o first form a view on the material provided as to whether the proposed prosecution is frivolous, vexatious, without substance or having no reasonable prospects of success before such notice is issued: Potier v Huber.
50 Form of court attendance notice
- describe the offence,
- briefly state the particulars of the alleged offence,
- contain the name of the prosecutor,
- require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,
- state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.
52 Service of court attendance notices
- in accordance with the rules.
53 When proceedings commence
- on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.
54 Attendance of accused person at proceedings
- arrest warrant may be applied for and issued before the person is required to attend first before a Magistrate.
- if an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person
- a Magistrate or authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:
(a) committing the accused person to a correctional centre or other place of security, and
(b) ordering the accused person to be brought before a Magistrate at the date, time and place specified in the order. - s 235 on wards deals with warrants.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 2 Committal Proceedings Generally [ss 55–60]
55 Outline of committal proceedings steps
- the steps for committal proceedings
- See Local Court Practice Note Comm 2 (issued on 14 March 2018) or procedures to be adopted for committal proceedings in the Local Court pursuant to the Early Appropriate Guilty Plea Scheme. Local Court Practice Note Comm 1 at [28-15,200] continues to apply to committal proceedings governed by provisions before amendment by the 2017 Act.
56 Magistrate to conduct committal proceedings
-See Local Court Practice Note Comm 2 (issued on 14 March 2018) concerning committal proceedings.
57 Committal proceedings to be heard in open court
- the administration of justice must take place in open court: John Fairfax & Sons Pty Ltd v Police Tribunal (NSW)
58 Application of other procedural provisions to committal proceedings
- ss 30, 36, 37, 38, 39, 40, 41 and 44,
- Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4
- Part 4 (Warrants) of Chapter 4.
59 Explanation of committal process and discount for guilty plea
If unrepresented, orally and in writing:
- the committal process under this Part, including charge certification and committal for trial or sentence,
- the scheme under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for the sentence discount that applies in the case of a guilty plea.
If represented:
- a written explanation of the committal process under this Part, including charge certification, case conferences and committal for trial or sentence, and
- an oral and written explanation of the scheme under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for the sentence discount that applies in the case of a guilty plea.
- see s 59(2) as to timing.
- failure by a Magistrate to comply with this section does not affect the validity of anything done or omitted to be done by the Magistrate or any other person in or for the purposes of the committal proceedings.
- see cll 9A and 9B of the Criminal Procedure Regulation 2017 at [2-5067]–[2-5070] for the prescribed forms of oral and written explanations of the committal process.
60 Application of Drug Court proceedings
- accused person may be dealt with under the Drug Court Act 1998 at any stage of committal proceedings despite any requirement of this Part.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 3 Disclosure of evidence [ss 61–64]
61 Requirement to disclose evidence
- service of brief of evidence by prosecutor.
- subject to laws about privilege and immunity in relation to evidence.
62 Matters to be disclosed in brief of evidence
- copies of all material obtained by the prosecution that forms the basis of the prosecution’s case,
- copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person,
- copies of any other material obtained by the prosecution that would affect the strength of the prosecution’s case.
63 Additional material to be disclosed
- as soon as practicable copies of material obtained by the prosecutor and not included in the brief of evidence, if the material is of a kind required to be included in the brief of evidence.
64 Exceptions to requirement to provide copies of material
if:
- impossible or impractical to copy the thing, or
- the accused person agrees to inspect the thing in accordance with this section.
- see s 64(2) with respect to inspection.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 4 Charge certificates [ss 65–68]
65 Prosecutors who may exercise charge certificate and case conference functions
- the Director of Public Prosecutions or the Attorney General,
- the persons in 65(b) to (d).
66 Charge certificates
- s 66(1) content of charge certificate
- s 66(2) certificate by prosecutor
67 Charge certificate must be filed
- filed by the prosecutor in the LC and served on the accused person, not later than the day set by order by the Magistrate, which be set after the service of the brief of evidence in the committal proceedings, and
(b) be not later than 6 months after the first return date for a court attendance notice in the committal proceedings, however, may be later than 6 months with the consent of the accused or if it is in the interests of justice to do so [see s 67(4) as to “internets of justice”]. - If the prosecutor determines that an offence other than an offence specified in the charge certificate filed by the prosecutor is to be the subject of the proceedings - amended certificate must be filed and served under s 67(5).
- see Local Court Practice Note Comm 2.
68 Failure to file charge certificate
- Magistrate may discharge or adjourn the committal proceedings to a specified time and place. In determining what action to take, the Magistrate is to consider the interests of justice, unless a warrant has been issued for failure to appear.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 5 Case conferences [ss 69–81]
69 Exceptions to requirements for case conference procedure
This Division does not apply if:
- is not, or ceases to be, represented by an Australian legal practitioner, or
- pleads guilty to each offence that is being proceeded with and the pleas are accepted by the Magistrate before a case conference is held, or
- is committed for trial under Division 7.
70 Case conferences to be held
- outlines objectives, to be held after charge certificate and more than one conference may be held and maybe, but not required to be held after amended charge certificate.
71 Case conference procedures
- initial in person or video link and any subsequent one can be held by telephone, unless ordered otherwise due to “exceptional circumstances”.
72 Obligations of legal representative of accused
- instructions to be obtained before conference from accused.
- matters in s 72(2)(a) to (c) must be explained to the accused before conference certificate is completed.
- s 72(2) only applies to o which Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies.
73 Joint accused
- a separate case conference is to be held for each of the co-accused.
- a joint case conference may be held for 2 or more co-accused with the consent of the prosecutor and each of the co-accused and only if a charge certificate has been filed for each co-accused.
74 Case conference certificate must be completed and filed
75 Contents of case conference certificate
76 Failure to complete case conference obligations
- outlines consequences of failure to participate in case conference or file certificate.
77 Further offers
- a plea offer is to be treated as part of the case conference certificate.
78 Case conference certificate and other evidence not admissible in other proceedings
- admissible for purposes in s 78(2) in relation to sentencing and proceedings brought under s 300 of LPUL and cannot be used on appeal against sentence unless the conferencing provisions of this act are complied with.
79 Confidentiality of case conference certificate matters
80 Prohibition on publication of case conference material
81 Certain matters not taken to be pre-trial disclosures
- the disclosure of any information during or in relation to a case conference held for the purposes of this Division or a plea offer is not, for the purposes of section 22A of the Crimes (Sentencing Procedure) Act 1999, a pre-trial disclosure.
- s 22A of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence made pre-trial disclosures.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 6 Examination of prosecution witnesses [ss 82–92]
82 Magistrate may direct witness to attend
- at committal proceedings, by consent or f satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
83 Witnesses who cannot be directed to attend
- for a prescribed sexual offence if the complainant is a cognitively impaired person.
- a child sexual assault offence if the complainant was under the age of 16 years on the earliest date on which, or at the beginning of the earliest period during which,
any child sexual assault offence to which the proceedings relate was allegedly committed and is currently under 18 years of age.
84 Victim witnesses, sexual offence witnesses and vulnerable witnesses generally not to be directed to attend
- requires “special reasons”, which is a more stringent test than that of “substantial reasons”: Lawler v Johnson.
85 Evidence of prosecution witness
- the person may be examined by the prosecutor and cross-examined by the accused person and by the prosecutor.
- must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be examined in respect of those matters: see Losurdo v R for discussion in relation to “substantial reasons”.
86 Exceptions to oral evidence
- may be given by statement, by consent, or if the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the evidence should be given by a statement.
- may be recorded statement: s 86(2).
87 Evidence to be taken in presence of accused person
88 Evidentiary effect of statements
- permitted to be tendered under Part 3A of Chapter 6.
89 Statements must comply with requirements
- permitted to be tendered under Part 3A of Chapter 6
90 Evidence not to be admitted
91 Magistrate may set aside requirements for statements
92 False statements or representations
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 7 Committal for trial where unfitness to be tried raised [ss 93, 94]
93 Committal for trial where unfitness to be tried raised
- may commit for trial if he question of the person’s unfitness to be tried for the offence is raised by the accused person, the prosecutor or the Magistrate, and if the question is raised by the accused person or the prosecutor, the Magistrate is satisfied that it has been raised in good faith.
- unfitness may be raised at anytime and may require for psychiatric report to be supplied.
- if an accused person is committed for trial under ss 93 and 94, and the person is found fit to be tried or the court is satisfied that the question of fitness is no longer raised, s 13A Mental Health (Forensic Provisions) Act 1990 at [17-2153] provides that the higher court can either retain the case for trial or sentence or remit it for case conferencing in the Local Court.
- The sentencing discount scheme is modified in these cases so that if an accused is found fit and pleads guilty at the earliest opportunity, he or she may be eligible for a 25 per cent discount for the utilitarian value of the plea: s 25D(5) Crimes (Sentencing Procedure) Act 1999.
94 Committal may take place after charge certification
- only if charge certificate has been file and a case conference not required, or
- if a charge certificate has been filed and case conference has not been held, or
- the case conference certificate has been filed.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 8 Committal for trial or sentence [ss 95–99]
95 Committal timing generally
- to be committed for trial after conference certificate is filed or if no case conference required after charge certificate is filed.
- may, at any time, adjourn the proceedings where it appears to the Magistrate to be necessary or advisable to do so (see sections 40 and 58(a)).
- see exceptions in s 95(2) and (3).
- before doing so must ascertain whether the accused pleads guilty.
96 Committal for trial
- must commit for trial unless accused pleads guilty.
- see s 96(2) in relation to corporations.
97 Guilty pleas and committal for sentence
- may be accepted or rejected.
- if accepted must be committed to the DC or SC for sentence.
98 Committal of unrepresented persons
- must not commit the accused person for trial or sentence unless the Magistrate is satisfied that the accused person has had a reasonable opportunity to obtain legal representation for, or legal advice about, the committal proceedings.
99 Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken
- if a guilty plea is accepted.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 9 Procedure on committal [ss 100–108]
100 Procedure applicable after committal for sentence
101 Higher court may refer accused person back to Magistrate
- if it appears to the Judge from the information or evidence given to or before the Judge that the facts in respect of which a court attendance notice was issued do not support the offence to which the accused person pleaded guilty, or
- if the prosecutor requests the order be made, or
- if for any other reason, the Judge thinks fit to do so.
- proceedings are to continue as if no guilty plea.
102 Disposal of proceedings by higher court
- DC or SC may proceed to deal with the person referred under s 97 as thinks fit.
- accused taken to be convicted on indictment of the offence concerned.
103 Change to not guilty plea in higher court
- if plea changed to not guilty, may direct the person for trial of the offence, unless punishable by imprisonment for life, may refer back to Magistrate.
104 Meaning of “accused person”
- includes person who is committed for sentence in DC or SC.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 10 General procedures after committal [ss 109–115]
109 Accused person to be committed to correctional centre
- must be committed to a correctional centre by the Magistrate until the sittings of the court at which the person is to be tried or dealt with or until the accused person is otherwise released by operation of law [i.e. Bail Act].
- arrest warrant may be issued under Part 4 of Chapter 4.
110 Bail acknowledgment to be notified [relevant to Bail Act].
111 Papers to be sent to officer of higher court
- See r 3.10 of the Local Court Rules 2009 for the documents required to be sent under s 111(1).
112 Responsibilities of appropriate officer
113 Copies of trial papers to be given to Director of Public Prosecutions
114 Copies of transcripts of evidence
- accused can obtain copies of transcript of evidence at committal proceedings and any recorded statement played at proceedings in accordance with Division 3 of Part 4B of Chapter 6.
115 Meaning of “accused person”
- includes person who is committed for sentence in DC or SC.
Chapter 3 – Indictable procedure (ss 45–169)
Part 2 - Committal proceedings (ss 47–120)
Division 11 Costs [ss 116–120]
116 When costs may be awarded to accused persons
- section 116(1) empowers a magistrate, at the end of committal proceedings, to order the prosecutor to pay “just and reasonable” professional costs to the accused person where:
(a) the accused person is discharged as to the subject matter of the offence: s 116(1)(a);
(b) the matter is withdrawn: s 116(1)(a);
(c) the accused person is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice: s 116(1)(b). - at end of committal proceedings”. If the accused person is discharged, the order for costs may form part of the order discharging the accused person: s 116(4).
- the requirement that an order must be both “just and reasonable” entails both a fair hearing on the merits of the application and that the terms of the order finally made will be in themselves reasonable: Caltex Refining Co Pty Ltd v Maritime Services Board (NSW), also see: Ly v Jenkins. onus lies upon the party seeking costs to establish such an entitlement and to establish that the costs claimed are just and reasonable: Director General NSW Dept of Agriculture v Temmingh.
17 Limit on circumstances when costs may be awarded against a public officer
- must not be awarded unless any or one of the matters in s 116(1)(a)-(d) are satisfied.
- onus rests upon the accused person: Fosse v DPP. he mere fact that the proceedings were resolved in the accused person’s favour was not enough. There has to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made: Fosse v DPP. here on the prosecutor’s own version of the facts it is clear that the proceedings must fail, it may properly be said that the proceeding lacks reasonable cause: Canceri v Taylor. o requirement that there be any connection between the basis on which the accused person was discharged and the facts and circumstances about which the court must be satisfied under s 117(1) before ordering costs: R v Hunt
118 Costs on adjournment
- on the application of the prosecutor or an accused person, order that one party pay costs if the matter is adjourned, but only if the magistrate is satisfied that the other party has incurred additional costs, by reason of the unreasonable conduct or delay of the party against whom the order is made and that such an order may be made whatever the result of the proceedings.
- question is whether a “party” to the proceedings caused additional costs to be incurred by unreasonable conduct or delay?
119 Content of costs orders
120 Enforcement of costs orders
- taken to be a fine within the meaning of the Fines Act 1996.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 1 Listing [ss 121–125]
121 Definitions 122 Listing 123 Authority of Criminal Listing Director 124 Liaison 125 Certain matters not affected
- Criminal Listing Director cannot fix or change the venue of proceedings, except with the consent of the accused person and the prosecutor, or to determine when or where a court is to exercise its jurisdiction.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 2 Commencement and nature of proceedings [ss 126–133]
126 Signing of indictments
- if not signed the trial is a nullity: R v Halmi, but see s 16(1)(i), which now imposes validity.
127 Manner of presenting indictments
- by the filing of a copy with the registrar and a copy must be served on the accused within 14 days after filing [ ee clause 10D of Pt 53 District Court Rules].
128 Directions as to indictments to be presented in District Court
- Supreme Court may issue a practice note on behalf of the Supreme Court giving directions to prosecutors with respect to the classes of indictments that are to be presented to the District Court rather than the Supreme Court.
- Chief Justice may exempt a particular indictment from any such direction or SC can reject pursuant the indictment for reasons in s 128(3)(a) to (c).
- see Practice Note SC CL 2.
129 Time within which indictment to be presented
- within 4 weeks or by order of court. ourt has a discretion to allow the presentation of an indictment outside the time prescribed pursuant to s 129(4): JSM v R
- see s 21.
- an application for an order under s 129(3)(b) to extend the time for filing an indictment must be made before the time for filing the indictment has expired and may be made in court or by written application to the court: cl 10F, Pt 53 District Court Rules.
130 Trial proceedings after presentation of indictment and before empanelment of jury
- where there have been pre-trial determinations made after arraignment but before the jury is empanelled, the accused must be re-arraigned before the jury panel.
- no need for the accused to be arraigned for a second time after the jury has been empanelled as the section imposes no such requirement: DS v R.
- see s 16.
130A Pre-trial orders and orders made during trial bind trial Judge
- all orders made during the course of a trial, not just pre-trial orders, will be binding on a subsequent trial judge even if a new trial etc.
- extends to rulling on admissibility of evidence: s 130A(5).
131 Trial by jury in criminal proceedings
- in SC or DC are to be tried by a jury, except as otherwise provided by this Part.
132 Orders for trial by Judge alone
- either party may make an application for trial by judge alone and, if both parties consent, then the court must allow the application. If the prosecutor applies and the accused does not consent the court cannot make an order for a judge alone trial. If the accused applies and the Crown objects then the court may make an order if it considers it to be in the interests of justice.
- Not a sufficient reason to order a trial by judge alone, that trial without a jury might result in more transparency in a reasoned judgment rather than a simple jury verdict, or the trial is more likely to be shorter and less expensive, or more likely to lead to the “correct” result: R v Belghar. Must be considered against the background that the convention method for trial is by a jury and the public interest in a trial by jury is as a protection of an accused from the executive and judicial power of the state and a means of applying objective community standards in the determination of facts: Director of Public Prosecutions (DPP) (NSW) v Farrugia [i.e. need show prejudice]. The importance of participation of the community in the administration of the criminal justice system. A judge determining an application ought not take into account that a jury is better able to determine issues of credibility than a judge: Redman v R. Election must be made personally by the accused and an election cannot be made by another person on the accused’s behalf: Public Guardian v Guardianship Board, where the Guardianship Board could not make the election.
- see s 132(5)-(7), District Court Rules Pt 53 r 10B, and Supreme Court Rules Pt 75 r 3G.
132A Applications for trial by judge alone in criminal proceedings
- not less than 28 days unless, except by leave of court.
- must not be made in a joint trial unless all other accused person apply to be tried by a Judge alone, and each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.
- accused may subsequently apply for a trial by jury.
133 Verdict of single Judge
- s 133(2) required that the judge expose the reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached.
- s 133(3) obliges a trial judge to take a warning into account and this requires the judge to include in the principles of law applied by the judge the particular requirement for a warning. The trial judge is to indicate why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A bare statement of the warning is insufficient: Fleming v R.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 3 Case management provisions and other provisions to reduce delays in proceedings [ss 134–149f]
134 Purpose
- apply to proceedings on indictment only and do not apply to Local Court proceedings: Andrews v Ardler. No equivalent statutory regime applicable to summary trials in the Local Court. However, for some years, there have been procedures for service of prosecution witness statements to the defence in advance of the hearing, with the intention of assisting the efficient, speedy and fair determination of a summary hearing: Director of Public Prosecutions v West. See Local Court — see Local Court Practice Note Crim 1.
135 Definitions
- court means DC of SC.
136 Directions for conduct of proceedings
- directions can be given with respect to conduct of trial.
- see Practice Note SC CL 2 and District Court Criminal Practice Note 9.
139 Pre-trial hearings
- Including:
(a) hear and determine an objection to the indictment,
(b) order the holding of a pre-trial conference under section 140,
(c) determine the timetable for pre-trial disclosure under section 141,
(d) give a direction under section 145(3),
(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial had commenced,
(f) hear and determine a submission that the case should not proceed to trial,
(g) give a ruling on any question of law that might arise at the trial, - Except with the leave of the court, a party to proceedings may not raise a matter referred to in subsection (3)(a) or (e) at trial if a pre-trial hearing was held in the proceedings and the matter was not raised at the pre-trial hearing.
140 Pre-trial conferences
- purposes:
(a) to determine whether the accused person and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial,
(b) to identify the key issues in dispute between the accused person and the prosecutor at the trial, if any,
(c) to identify any other issues relating to the proceedings against the accused person that require resolution prior to the commencement of the trial,
(d) to identify or determine any other matter as directed by the court. - pre-trial conference form must be completed. See 140(9) and (10) as to what to be included.
- important with voluminous documents: Roach v R.
141 Mandatory pre-trial disclosure
- notice of the prosecution case to the accused person in accordance with section 142.
- the accused person is to give notice of the defence response to the prosecution’s notice in accordance with section 143,
- the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144.
- check practice notes.
142 Prosecution’s notice
- set out what documents must be provided.
- under a continuing obligation to make full disclosure to the accused, in a timely manner, of all material known to the prosecutor, which can be seen:
(a) to be relevant or possibly relevant to an issue in the case;
(b) to raise or possibly raise a new issue, whose existence is not apparent from the evidence, the prosecution proposes to use; and/or
(c) to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations: Grey v R. The Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice, and cannot be expected to foresee: R v Spiteri. It is not for the prosecution, at least in an ordinary case, to anticipate or comment on the ways in which materials disclosed by it might assist the defence: Edwards v R. - common law principles concerning disclosure apply to police prosecutors prosecuting summary offences [Bradley v Senior Constable Chilby].
- relate to relevant Bar Rules.
143 Defence response
- sets out content of defence response.
- including s 190 of EA on a statement of a witness that the prosecutor proposes to adduce at the trial and/or a summary of evidence that the prosecutor proposes to adduce at the trial and s 184 of EA.
144 Prosecution response to defence response
- content prosecution response to defence response
145 Dispensing with formal proof
- may dispense with provisions in Division 3, 4 or 5 of Part 2.1, Part 2.2 or 2.3 and Parts 3.2–3.8 of EA, in relation to evidence which is not included in under s 143(1)(c) or may admit defendants response under s 143 did not disclose an intention to dispute or require proof of the fact.
- provisions of this section are in addition to the provisions of the EA and in particular s 190.
- court may direct for evidence to be adduced by way of summary to which the opinion rule would not apply.
146 Sanctions for non-compliance with pre-trial disclosure requirements
- exclusion.
- exclusion of expert evidence.
- adjournment.
- application of sanctions.
- subject to regulations.
146A Drawing of inferences in certain circumstances
- apply to failure to comply with pre-trial disclosure and notice of alibi.
- may make such comment at the trial as appears proper and the jury may make such inferences as appear proper, but a person must not be found guilty of an offence solely on an inference drawn under this section.
- s 146A(2) does not apply unless the prosecutor has complied with pre-trial requirements.
147 Disclosure requirements are ongoing
- ongoing and to be disclose as soon as practicable and until:
(a) the accused person is convicted or acquitted of the charges in the indictment,
(b) the prosecution is terminated. - accused may amend defence upon receipt.
148 Court may waive requirements
- only if the court is of the opinion that it would be in the interests of the administration of justice to do so on application or own initiative, on conditions as it thinks fit, and to give reasons under this section.
149 Requirements as to notices
- sets out the manner as to how notice is to be given and must be filed with court.
149A Copies of exhibits and other things not to be provided if impracticable
- applies to notices.
149B Personal details not to be provided
- unless materially relevant or ordered.
149C Requirements as to statements of witnesses
- can be by ways of questions and answers.
149D Exemption for matters previously disclosed
- as part of brief of evidence etc.
149E Court powers to ensure efficient management and conduct of trial
- as it thinks appropriate for the efficient management and conduct of the trial including with respect to disclosure.
149F Miscellaneous provisions
- court may make orders to resolve any dispute between the parties to criminal proceedings with respect to disclosure.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 4 Pre-trial disclosure — general [ss 150, 151]
150 Notice of alibi
- particulars of notice of alibi must be given to DPP and filed with the court otherwise need to leave to rely on alibi evidence.
- see s 150(3) as to what needs to be contained [i.e. name and address].
- the court may not refuse leave under this section if it appears to the court that, on the committal for trial of the accused person, he or she was not informed by the committing Magistrate of the requirements of subsections (2), (3) and (7) and, for that purpose, a statement in writing by the committing Magistrate that the accused person was informed of those requirements is evidence that the accused person was so informed: s 150(4).
- the proper course is to allow service of the notice out of time and permit the Crown an adjournment to investigate: R v Cooper. Court should be slow to refuse leave to rely upon alibi evidence unless prejudice arises such as is incapable of being addressed without significant disruption to the trial: Skondin v R. The accused can be cross-examined as to his failure to notify an alibi within the time prescribed and the failure can be the subject of comment: R v Lattouf. Directions under the section for Crown’s evidence to disprove may be given at any time, for example before the close of the Crown case and where the Crown intends to adduce evidence to rebut the alibi it should disclose that evidence to the defence before the close of the Crown case: R v Heuston. A failure by the Crown prosecutor to cross-examine the accused on a notice of alibi was held to be a breach of the rule in Browne v Dunn: R v Marshall.
- “prescribed period” means the period commencing at the time of the accused person’s committal for trial and ending 56 days before the trial is listed for hearing.
151 Notice of intention to adduce evidence of substantial mental impairment
- on a trial for murder, the accused person must not, without the leave of the court, adduce evidence tending to prove a contention of substantial mental impairment unless the accused person gives notice, as prescribed by the regulations, of his or her intention to raise that contention to the Director of Public Prosecutions and files a copy of the notice with the court.
- Without limiting subsection (1), the accused person must not, without the leave of the court, call any other person to give evidence tending to prove a contention of substantial mental impairment unless the notice under this section includes
(a) the name and address of the other person, and
(b) particulars of the evidence to be given by the other person. - must be given to the DPP at least 35 days before the date on which the trial is listed to commence [cl 23 of the Criminal Procedure Regulation 2017].
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 5 Pleadings on trial [ss 152–157]
152 Arraignment on charge of previous conviction
- sets down the procedure to be adopted when dealing with offences such as that in s 115 Crimes Act, where an increased penalty is applicable to an offence committed by an accused after he or she has been convicted of a similar offence. The procedure is adopted to overcome any prejudice which might be suffered by an accused if the jury were to be aware of the previous conviction.
153 Guilty plea to offence not charged
- may plead “not guilty” of the offence charged in the indictment, but “guilty” of the other offence not in the indictment. Crown may elect to accept the plea of “guilty” or may require the trial to proceed on the charge on which the accused person is arraigned: R v Broadbent and R v Hazeltine. If the Crown accepts the plea to the lesser offence in full discharge of the indictment, the accused is taken to have been acquitted of the count in the indictment: see Gilham v R.
- where on the indictment there are two counts, the second being an alternative to the first count, the accused can plead not guilty to the first count but guilty to the alternative count. If the Crown does not accept the plea to the alternative count, in discharge of the indictment, the plea to the alternative count stands and the accused is put in charge of the jury on the count to which the accused pleaded not guilty: R v Cole.
154 Plea of “not guilty”
- the court is to order a jury for trial accordingly.
155 Refusal to plead
- court may order a plea of “not guilty” to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded “not guilty”.
156 Plea of autrefois convict
- to be determined by a judge without a jury.
- the plea will be available where the elements of the offence charged are identical to, or included in, the elements of the offence for which an accused has been tried to conviction or acquittal: Pearce v R.
157 Change to guilty plea during trial
- the e court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence, if the plea is accepted by a judge.
- no power to permit the plea to be withdrawn even though the judge had not actually found the accused guilty. Once the plea has been accepted the court must discharge the jury and find the accused guilty, which finding can be made expressly or by implication: R v Hura.
- Where one of several accused being tried jointly changes his or her plea to guilty during the trial, the preferable course is to have the plea of guilty entered in the absence of the jury and to then discharge the jury with respect to all counts against that accused in accordance with s 157, and to direct the jury not to speculate as to the reasons why that accused would play no further role in the trial: Humphries v R.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 6 Other provisions relating to trials [ss 158–164a]
158 Transcript of statement in committal proceedings
- a transcript of a record of a statement made by an accused person may, unless the court otherwise orders, be given in evidence at the trial of the accused person if it is proved on oath that the record is a true record of the statement made by the accused person and that the transcript is a correct transcript of the record.
159 Opening address to jury by accused person
- may address after the opening address by the prosecutor on:
(a) the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute, and
(b) the matters to be raised by the accused person. - purpose of the opening was only to inform the jury of the issues to be raised in the trial and was not meant to be argumentative, nor should it be a forecast of the defence closing address by referring to matters such as the onus and standard of proof or directions and warnings to be given by the trial judge in respect of the evidence in the Crown case: R v MM.
160 Closing address to jury by accused person
- may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury.
- may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury [refer to relevant Bar Rules].
161 Summary by Judge
- Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.
- summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law must be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of the ingredients and a brief outline of the arguments which have been put in relation to that evidence: R v Zorad.
162 Alternative verdict of attempt on trial for any indictable offence
- If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he or she is guilty of:
(a) an attempt to commit the offence, or
(b) an assault with intent to commit the offence,
it may acquit the person of the offence charged and find the person guilty of the attempt or assault, and the person is liable to punishment accordingly.
- where an alternative verdict of attempt is to be relied upon it should be raised by the prosecution when opening the case: R v Cameron.
- refer to relevant Bar Rules.
163 No further prosecution after trial for serious indictable offence where alternative verdict possible
- the person is not liable to further prosecution on the same facts for that other offence, where found guilty of an alternative offence.
164 Joint trial in case of perjury
- all of those persons may be tried together, at the same time and before the same jury, provided that each person is to have his or her full right of challenge, provided conditions in section are satisfied.
164A Judge unable to continue in trial by jury
- nominate another judge of the court (the new presiding judge) to take over the conduct of the proceedings, provided in the interests of justice, or
- discharge the jury and order a new trial.
- order or ruling made by the former presiding judge is binding on the new presiding judge unless, in the opinion of the new presiding judge, it would not be in the interests of justice for that order or ruling to be binding.
Chapter 3 – Indictable procedure (ss 45–169)
Part 3 Trial procedures [ss 121–169]
Division 7 Certain summary offences may be dealt with [ss 165–169]
165 Definitions and application
166 Certification and transfer of back up and related offences
- prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence and s to produce to the court a certificate specifying each back up offence and related offence and proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).
167 Manner of dealing with back up and related offences
- dismiss or deal with it if found guilty of indictable offence, unless to do so would not be in the interests of justice.
- if not found guilty of indictable offence, then deal with it unless to do so would not be in the interests of justice.
- court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged.
- court can deal with matters under the section notwithstanding that no certificate under s 166 has been handed up to the magistrate at committal proceedings and the prosecution is not bound by decisions made prior to committal regarding related or back-up summary offences: Director of Public Prosecutions v Sinton.
168 Procedures for dealing with certain offences related to indictable offences
- court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.
- may call additional evidence with leave of court.
- in dealing with backup offence with respect to sentencing, court has the same functions and is subject to the same restrictions as LC.
- the sentence for a back up offence under this provision can be included in an aggregate sentence imposed in the District or Supreme Court under s 53A of the Crimes (Sentencing Procedure) Act.
- where an aggregate sentence is imposed for an indictable offence as well as the s 166 offence there is no limitation on the court under s 58 of the Crimes (Sentencing Procedure) Act in respect of the accumulation of the indicative sentence for the s 166 offence with the indictable offence: Alesbhi v R.
169 Remission of certain offences related to indictable offences to Local Court
- may remit backup offence to LC if in the interests of justice.
- any back up offence or related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court.
Chapter 4 Summary procedure [ss 170–257G]
Part 1 Preliminary [ss 170, 171]
170 Application
- applies to proceeding for summary offences including those health with summarily.
- Parts 2 and 3 to LC.
- Part 4 to LC, DC and SC.
- Part 5 (except Division 2A) to DC and SC.
- Division 2A of Part 5 to SC.
171 Definitions
Chapter 4 Summary procedure [ss 170–257G]
Part 2 Trial procedures in lower courts [ss 172–219]
Division 1 Commencement of proceedings [ss 172–181]
172 Commencement of proceedings by court attendance notice
- by court attendance notice.
- see r 8.7 of the Local Court Rules 2009.
173 Commencement of proceedings by police officer or public officer
- a police officer or public officer, as defined at [2-s 3], may commence proceedings by issuing a court attendance notice and filing the notice. Unlike a private prosecution under s 174, the registrar has no power to refuse to sign a court attendance notice issued by a police officer or public officer.
174 Commencement of private prosecutions
- where the registrar refuses to sign a notice under s 174(2), the question of whether the notice is to be signed and issued is to be determined by the court on application of the private prosecutor: s 174(3): Potier v Huber.
- see r 8.4 of the Local Court Rules 2009 at [2-9830] for grounds for a registrar to refuse to sign a court attendance notice.
175 Form of court attendance notice
- form and content attendance notice.
- failure of a court attendance notice to fulfil the requirements of the section will not necessarily result in the notice being invalid see at s 16.
177 Service of court attendance notices
- in accordance with Pt 5 of LCR [i.e. personally] and filed with registry.
178 When proceedings commence
- on the date on which a court attendance notice is filed in the registry.
179 Time limit for commencement of summary proceedings
- not later than 6 months from when the offence was alleged to have been committed, unless involve death of person and inquest or is a back up offence
- does not apply to matters listed in s 179(2), such as indictable offences dealt with summarily.
- question whether an offence is to be treated in law as continuous is whether its gravamen is to be found in something which the offender can, at will, discontinue: Sloggett v Adams.
- burden of proving that the information is in time lies on the prosecutor: Morgan v Babcock and Wilcox Ltd.
180 Relationship to other law or practice
- if an Act or a statutory rule provides for proceedings for an offence which may be taken in a court to be commenced otherwise than by issuing a court attendance notice, the proceedings may be commenced in accordance with this Act.
- nothing in this Part affects the operation of the provisions of the Crimes (Domestic and Personal Violence) Act 2007 relating to the commencement of proceedings under that Act.
181 Attendance of accused person at proceedings
- may apply for arrest warrant after court attendance notice.
182 Written pleas
- may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty.
- in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.
- an accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court:
(a) is not required to attend the Court on that date, and
(b) is taken to have attended the Court on that date. - does not apply if bail is granted or dispensed with or refused.
183 Brief of evidence to be served on accused person where not guilty plea
- ss 183(2) and 186 provide for the contents of the brief of evidence.
- to be served at least 14 days before the hearing of the evidence for the prosecution, unless set by Magistrate.
- see relevant Bar Rules.
- if on the day the hearing is ready to commence, there has been a breach of the section then the prosecution must seek dispensation under s 188(2) or seek an adjournment under s 187(4). The magistrate is then to take into account whether there is any prejudice actually faced by the accused person as a result of the failure to serve the brief in time [West]. Does not itself justify the magistrate dismissing the charge without considering all of the circumstances and where the only reasonable course was to grant the adjournment sought by the prosecutor: Director of Public Prosecutions (NSW) v Fungavaka.
Chapter 4 Summary procedure [ss 170–257G]
Part 2 Trial procedures in lower courts [ss 172–219]
Division 2 Pre-Trial procedures [ss 182–189]
182 Written pleas
- may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty.
- in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.
- an accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court:
(a) is not required to attend the Court on that date, and
(b) is taken to have attended the Court on that date. - does not apply if bail is granted or dispensed with or refused.
183 Brief of evidence to be served on accused person where not guilty plea
- ss 183(2) and 186 provide for the contents of the brief of evidence.
- to be served at least 14 days before the hearing of the evidence for the prosecution, unless set by Magistrate.
- see relevant Bar Rules.
- if on the day the hearing is ready to commence, there has been a breach of the section then the prosecution must seek dispensation under s 188(2) or seek an adjournment under s 187(4). The magistrate is then to take into account whether there is any prejudice actually faced by the accused person as a result of the failure to serve the brief in time [West]. Does not itself justify the magistrate dismissing the charge without considering all of the circumstances and where the only reasonable course was to grant the adjournment sought by the prosecutor: Director of Public Prosecutions (NSW) v Fungavaka. Common law principles concerning disclosure apply to police prosecutors prosecuting summary matters: Bradley v Senior Constable Chilby.
184 Exhibits
- not required to included if impossible or impracticable.
- see s 184(2) in relation to inspection.
185 Recording of interviews with vulnerable persons
- may include a transcript of a recording made by an investigating official of an interview with the vulnerable person.
- must be certified and served on accused, but does not have to have a written statement and transcript forms part of the evidence and do not have to serve the actual recording.
185A Recordings of interviews with domestic violence complainants
- the brief of evidence may include a recorded statement relating to the offence from the victim if proposed to be called. Requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, and access to, a recorded statement must be complied with.
- brief of evidence that includes a recorded statement is not required also to include a written statement from the domestic violence complainant.
- does not affect s 289I(2).
186 Form of copy of brief of evidence
- see rr 3.12–3.13 of the Local Court Rules 2009.
187 When brief of evidence need not be served
- there are compelling reasons for not requiring service, or
- it could not reasonably be served on the accused person.
- may be made on initiative or on application.
- could extend service or adjourned under this devision - s 187(4): Director of Public Prosecutions v West at [24]. There would be little reason to grant any further indulgence to a prosecutor should further default occur.
- there is nothing in the language or context that would deprive the court of the power to make this type of dispensing order after the time for service had elapsed: Director of Public Prosecutions v West.
- s 187(5) - see cl 24 Criminal Procedure Regulation 2017 at [2-5200]. See s 336 Criminal Procedure Act 1986 at [2-s 336] for penalty notice offences.
188 Evidence not to be admitted
- court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor: Director of Public Prosecutions v West [can be in part or in whole etc].
- needs consent of there accused or on application may dispense with s 188(1).
189 False statements or representations
- is an offence.
- Chapter 5 [election provisions] apply.
Chapter 4 Summary procedure [ss 170–257G]
Part 2 Trial procedures in lower courts [ss 172–219]
Division 3 Hearings [ss 190–210]
190 Time for hearing
- must be set on the first return date or such later date.
- must notify accused if not present.
- if not present and not entered a written plea of not guilty under s 182 may proceed to determine the matter on the day or subsequent day, but must be satisfied that the person had notice of the return date.
- see s 40 regarding adjournment. Must not be exercised so as to work a manifest injustice on one party: Maxwell v Keun.
- see ss 199 and 200 as to material court may have regard to.
- see Local Court Practice Note Crim 1.
191 Proceedings to be open to public
192 Procedures where both parties present
- may hear the matters, adjourn it and state the substance of the offence to the accused and if the hearing proceeds ask if he pleads guilty or not guilty. See s 40.
- a valid plea can be entered by an accused person’s legal representative in the absence of the accused and it is unnecessary in such a case that the charge be read out in the court under s 192(2): s 3. Stating of the charge was not a necessary pre-condition to a valid plea although in the case of an unrepresented accused the section should be followed: Collier v DPP (NSW).
- where the accused person does not attend but is legally represented on the hearing day, the effect of ss 3 and 36 of the Criminal Procedure Act 1986 is that the accused person is before the court so that s 196 of the Act does not apply, and the court should proceed to hear and determine the matter under s 192: [McKellar v DPP].
- see Local Court Practice Note Crim 1.
193 Procedure if offence admitted
- if the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly.
- section does not apply if the court does not accept the accused person’s guilty plea. Plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v R.
194 Procedure if offence not admitted
- not guilty or fails or refuses to make a plea or the court does not accept the accused person’s guilty plea, the court must proceed to hear and determine the matter.
- procedures and practice for examination and cross-examination of witnesses and the right to address the court on the case in reply or otherwise are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence: s 38.
- see Local Court Practice Note Crim 1.
195 How evidence is taken
- if the accused person gives any evidence or examines any witness as to any matter other than as to the witness’s general character, the prosecutor may call and examine witnesses in reply.
- see s 38 - rocedures and practice for the examination and cross-examination of witnesses and the right to address the court on the case in reply or otherwise are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence.
- see ss 159 and 160.
196 Procedure if accused person not present
- may be determined in accordance with this Division.
- may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice
- if an offence is an indictable offence that may be dealt with summarily only if the accused person consents, the absence of the accused person is taken to be consent to the offence being dealt with summarily and the offence may be dealt with in accordance with this Division.
- where the accused person does not attend but is legally represented on the hearing day, the effect of ss 3 and 36 of the Criminal Procedure Act 1986 is that the accused person is before the court so that s 196 of the Act does not apply.
97 Adjournment when accused person not present
- may adjourn and issue arrest. See also s 40.
198 Absent accused person taken to have pleaded not guilty
199 Material to be considered when matter determined in absence of accused person
- on the basis of the court attendance notice without hearing the prosecutor’s witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence.
- before determining the matter, the court must consider any written material or recorded statement given to the court by the prosecutor, or lodged by the accused person under section 182.
200 When court may require prosecution to provide additional evidence
- in the absence of the accused person, if it is of the opinion that the matters set out in the court attendance notice are not sufficient to establish the offence.
- see s 200(2) with report to admissibility.
201 Procedure if prosecutor or both parties not present
- dismiss, but may adjourn for mention hearing.
202 Determination by court
- must be determined by conviction, making an order or dismissing the matter.
- may adjourn if accused is absent to be brought for sentencing. Section 25 of the Crimes (Sentencing Procedure) Act 1999 provides for the issue of warrants of arrest for absent defendants. Section 62 of that Act also provides for the issue of warrants of commitment after sentencing.
- it is essential that a magistrate should state the facts found and the legal principles applied to those facts. It will not be sufficient for a magistrate to state that he or she has considered the relevant cases. The magistrate should state in the judgment concisely what he or she understands those authorities to decide: Donges v Ratcliffe.
203 Additional powers to adjourn summary proceedings
- court may adjourn summary proceedings before or at any stage of proceedings to enable the matter to be the subject of a mediation.
204 Record of conviction or order to be made
- must be made and given to accused.
205 Order dismissing matter to be made
- certificate must be given.
- see s 208.
206 Effect of certificate that matter has been dismissed
- prevents any later proceedings in any court for the same matter against the same person.
207 Power to set aside conviction or order before sentence
- an accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside: can apply to have the plea of guilty withdrawn at any time up until sentence is passed: Frodsham v O’Gorman. Court will permit the plea of guilty to be withdrawn where not to do so would amount to a miscarriage of justice: Boag v R. Accused has the onus of proving that the circumstances are such that the plea should be withdrawn and the courts should approach such an application with “caution bordering on circumspection”: R v Liberti. See R v Hura for circumstances.
- court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.
208 Dismissal of matter if matter withdrawn [and accused person taken to be discharged]
- does not prevent any later proceedings in any court for the same matter against the same person.
209 Application of section 10 of the Crimes (Sentencing Procedure) Act 1999
- apply to any accused who is absent.
210 Penalties applying to traffic offences committed by children.
Chapter 4 Summary procedure [ss 170–257G]
Part 2 Trial procedures in lower courts [ss 172–219]
Division 4 Costs [ss 211–218]
211 Definition
211A Imposition of court costs levy
- accused must pay levy, but not paid with respect to offences in s 211A(2).
- in addition to any offence.
212 When costs may be awarded
213 When professional costs may be awarded to accused persons
- dismissed or withdrawn.
- the prosecutor fails to appear or both the prosecutor and the accused person fail to appear.
- the matter is withdrawn or the proceedings are for any reason invalid.
- must be just and reasonable: ltex Refining Co Pty Ltd v Maritime Services Board (NSW) and Ly v Jenkins. onus lies on party seeking costs to establish such an entitlement and to establish that the costs claimed are just and reasonable: Director General NSW Dept of Agriculture v Temmingh. Purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey.
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
- not to be awarded unless conditions in s 214(1) are satisfied.
- to fall within s 214(1)(d), the accused person has to establish something about the conduct of the proceedings being an “exceptional circumstance” other than some matter mentioned in subsections (a), (b) or (c). There has to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made: Fosse v DPP. Lacks reasonable cause: Director of Public Prosecutions (Cth) v Ngo.
215 When professional costs may be awarded to prosecutor
- if court considers it just and reasonable and subject to the considerations in s 215(1A). See comments as to costs above.
216 Costs on adjournment
- only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.
217 Enforcement of costs orders
- is taken to be a fine.
218 Public officers and police officers not personally liable for costs [indemnified]
