Important changes in the Criminal
Procedure Act 1986 resulted in the abolition of the ‘Committal Hearings’
in NSW and this means that ‘Committal Hearings’ in the Local Court have now
been replaced by the process of ‘Charge Certification’ as well as ‘Case
Conferencing.’ We will delve into what those terms mean in the article (below).
When a person comes before the court
for an Indictable Offence, the charges as well as the evidence are reviewed by
a senior prosecutor and the senior prosecutor will confirm whether the charges
will proceed. Both the defence lawyer as well as the prosecutor will participate
in a ‘case conference ‘whereby the prosecution will engage in a discussion with
the defence with respect to which charges they will proceed with, and which
charges will be committed to the Higher Court. (Either the District Court or
the Supreme Court).
What is the actual process of the NSW
When a defendant is charged with an Indictable
Offence, it becomes the task of the Local Court Magistrate to oversee the
procedural steps as set out in the Criminal Procedure Act 1986. This
includes, ensuring that the brief is served on the defence and ensuring that
the Charge Certificate is filed and served on the defence lawyers, ensuring
that the case conference takes place between both the defence and prosecution
and also ensuring that the subsequent case conference certificate is filed with
the court. Once that process takes place in the Local Court the defendant will
then be required to enter a plea and the Local Court Magistrate will then ‘commit’
the matter to a higher court for either sentence or for trial.
When is the Brief of Evidence?
A brief of evidence must be served on
the defendant (if self-represented) or on their lawyer (if legally represented)
and this is pursuant to Criminal Procedure Act 1986 section 62. In the
brief of evidence, there will be all the evidence which the prosecution will be
relying on to prosecute the case.
What is the Charge Certification?
Following service of the brief of
evidence on the defence, the prosecution will then proceed to file the Charge
certificate. The Charge Certificate will set out the charges which were laid
but the prosecution will not be proceeding with, the charges which the
prosecution will proceed with, the backup charges which the prosecution will be
proceeding with etc. As part of the Charge Certification process, the
prosecution ‘certifies’ that the evidence is in fact enough to establish that the
accused is guilty of each element of each offence on the Charge Certificate.
What is a Case Conference?
The Magistrate explains the process
of committal to the defendant prior to the case conference. The magistrate also
explains the sentencing discount scheme so that the defendant understands the
benefits of entering a plea of guilty. If the defendant is legally represented,
parties must take part in a ‘Case Conference’ following the filing of the Charge
Certificate and once that occurs, the court will adjourn the matter for a
period of 8 weeks to allow the case conference to occur.
It is very important that you speak with a
lawyer so that you can get the appropriate legal advice which you require prior
to going to court.
Our team of experienced solicitors are there for you and can
help you answer all your questions, so be sure to contact Nicopoulos Sabbagh Lawyers.
*This article correctly reflects
the Laws of NSW as at 3rd August 2022.
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