Committal proceedings serve as a critical juncture within the legal framework of New South Wales, pivoting in the criminal justice process. As a prelude to a trial, they entail a comprehensive examination of evidence to determine whether it is sufficient to warrant a trial. 

Understanding the intricacies of committal proceedings illuminates the fundamental principles of the Australian legal system and the mechanisms in place to uphold justice.


What is a Committal Hearing?

Committal hearings 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:

  • Assault;
  • Fraud;
  • Murder;
  • 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:

Step one

Committal proceedings commence with the issuing and filing of a Court Attendance Notice, also known as a CAN.

Step two

A prosecutor will serve a brief of evidence on the accused or the accused’s lawyer if legally represented.

Step three

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.

Step four

In the circumstance where the accused already has legal representation, the matter will be adjourned 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 whether the accused will plead guilty or not guilty to the charge or charges against them. The case conference is also 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 can attend the case conference discussions in person, via audio-visual link or telephone if both the prosecutor and the 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, the prosecutor and the accused’s lawyer will draft and sign a case conference certificate.

The case conference certificate will include the following;

  • 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 offered 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.

If the accused does not yet have legal representation, the matter will be adjourned 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.

Step five

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.

Step six

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 a 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 apply 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, the witness must do so.

If the Magistrate refuses the request for the committal proceedings, they will provide reasons for coming 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 be heard in the District or Supreme Court, depending on their severity.

Key Takeaways

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia