“It’s the constitution, it’s Mabo, it’s justice, its law, its the vibe and – ah – that’s it, it’s the vibe.” The infamous words of Denis Denuto have inspired many to consider if they have a case that may be bought before the court. However, when it comes to the operation of the criminal law in NSW, cases require a “legal basis…not just a – it’s in the vibe sort of thing.” (Cabezuela v R  NSWCCA 107).
Can I take my case straight to the High Court?
“Tell him he’s dreamin’.”
Whilst many aspire to have their case heard in the High Court like Darryl Kerrigan, the only cases that can be heard are those relating to the interpretation of the Constitution or matters that have come from the Supreme Courts of the states and territories.
In NSW, all criminal cases begin in the Local Court, with indictable matters commencing with ‘Committal Proceedings.’
What are Committal proceedings?
Committal proceedings are conducted when an accused is charged with an indictable offence. An indictable offence is a serious offence where the maximum penalty that can be imposed is greater than two years. The offences include:
- Armed Robbery; and
- Sexual Assault.
The objective of committal proceedings allows for the prosecution to determine what charges against the accused will proceed before the court. The method also provides the accused with an opportunity to plead guilty or not guilty to the offence.
The committal process is outlined in Part 2 Criminal Procedure Act 1986 (NSW) and operates as follows:
Committal proceedings commence with the issuing and filing a Court Attendance Notice, also known as a CAN.
A prosecutor will serve a brief of evidence on the accused or the accused’s lawyer if legally represented.
A charge certificate will be filed in the Local Court. The prosecutor serves the charge certificate on either the accused or the lawyer of the accused. The charge certificate is a document that contains all the offences that the prosecution intends to proceed in charging the accused with if the case should go to trial in either the District or Supreme Court.
In the circumstance the accused already has legal representation the adjournment of the matter will occur so that the prosecutor and the accused’s lawyers can hold one or a series of case conferences. The objective of the case conference is to determine if the accused will plead guilty or not guilty to the charge or charges against them. The case conference is an opportunity for both parties to discuss any offers presented to the accused.
Additionally, the parties can address any other issues that may be relevant to the accused’s matter. The accused has the opportunity to attend the case conference discussions in person, via audio-visual link or telephone if both the prosecutor and accused’s lawyer are agreeable. During the case conference process, it is a requirement that the accused is willing and able to provide relevant instructions to their lawyer.
Following the case conference, a case conference certificate will be drafted and signed by both the prosecutor and the accused’s lawyer.
The case conference certificate will include;
- the agreed facts;
- it will stipulate any offers put forward to the accused to plead guilty and whether they were accepted;
- if the prosecutor has made an offer for the accused to accept a guilty plea to a different offence. If so, the relevant details are required to be documented in the agreed facts.
The accused will be required to sign the charge certificate.
In the situation that the accused does not yet have legal representation, adjournment of the matter will occur so that the accused can obtain legal advice. The accused will decide whether to plead guilty or not guilty to the charges on the certificate. The accused has the option of contacting the prosecutor by writing to discuss the charge/charges against them. Following the adjournment, the matter will then go back before the Magistrate.
The charge certificate will then be filed in the Local Court. In the event, the accused is found guilty of the offence the relevant court will receive the certificate. The charge certificate may be used to assist in determining the individual’s sentence.
When the accused comes before the Magistrate, they will ask the accused how they would like to plead to the offences on the charge certificate
- If the accused pleads guilty, the Magistrate will direct the matter to the district or supreme court for committal for sentence.
- If the accused pleads not guilty, the matter will be directed to the district or supreme court for committal for trial.
Examination of prosecution witnesses
Following charge certification, the prosecution or the accused can make an application to the Magistrate for the prosecution witnesses to come before the open court at a committal proceeding where they will provide oral evidence. The process would allow the defence to cross-examine the witnesses. The Magistrate may only make such a decision if they are satisfied that there are substantial reasons why in the interests of justice that the witness must do so.
In the circumstance the Magistrate refuses the request for the committal proceedings, they will provide reasons why they came to this decision.
It is essential to be aware that one of the significant changes that occurred with the Criminal Procedure Amendment (Committals and Guilty Pleas) Regulation 2018 under the Criminal Procedure Act 1986 (NSW) is that the Magistrate does not decide the sufficiency of evidence if heard in a committal proceeding.
After the committal proceedings, these cases will either be heard in the District or Supreme Court, depending on their severity.