criminal law

Committal Proceedings


Posted by Noah Redmond

Committal proceeding in South Australia were reformed in early 2018 by the enactment of the Criminal Procedure Act 1921.  This Act was designed to improve courts’ efficiency; whether this occurs remains to be seen.  It will not be possible to determine the success of the reforms until the matters are reaching the trial stage in the District and Supreme Courts.  However, there has certainly been issues regarding the time taken for committal proceedings in the Magistrates Court which have made the news.

Committal Proceedings are proceedings in the Magistrates Court on Indictable proceedings which take place where a person is to be tried or sentenced in a Superior Court.

There are two main purposes of committal proceedings:

  1. To ensure that there is sufficient evidence to put the accused on trial in a superior court; and
  2. To ensure that the accused is made properly aware of the case against him or her.

Unless the Magistrates Court orders otherwise, committal proceedings are conducted ‘on the papers’.  That is, the evidence is received by way of affidavits rather than a witness coming to court to give evidence.

The system now in place under the Criminal Procedure Act 1921 involves a three-stage process:

At stage one the police bring the charge and then seek a remand date for the preparation of a preliminary brief and a charge determination to be made by the Director of Public Prosecutions (DPP).

A preliminary brief is to contain information, in the form of affidavits and other evidence, which is sufficient in the opinion of the DPP to determine which charge(s) should proceed.

If the DPP do not make a charge determination then the matter can either be further remanded to allow the gathering of more material or dismissed.  If it is dismissed at this stage it can be recommenced at a later date.

The second stage commences once the DPP has made a charge determination.  If the accused does not plead guilty, then the matter is remanded for the DPP to prepare a committal brief and for the accused to answer the charge.

A committal brief should in theory contain all the material on which the prosecution intends to rely on at trial.  As a matter of practicality this will not occur as there will always be material which comes to the attention of the DPP after completion of the committal brief because of things, for example, a witness remembering something for the first time.

A committal brief should be received by an accused, or more likely his or her lawyer, 4 weeks before the date on which he is to answer the charge.

The answer charge date is the third stage.  At the answer charge date, the accused will usually do one of the following things:

  1. Plead Guilty and be committed for sentence in a superior court (some matters can remain in the magistrates’ court for sentence with the consent of the court and both parties);
  2. Plead Not Guilty and be committed for trial in a superior court;
  3. Assert that there is no case for the accused to answer and have the matter listed for argument;
  4. Seek to cross-examine witnesses who have provided affidavits.

An assertion that there is no case to answer is an assertion by the accused that, taking all of the evidence presented at its highest and drawing all of the inferences from that evidence most favorable to the prosecution, a properly instructed jury would not be able to find the charge proved beyond a reasonable doubt.

Although it is the accused who asserts this, it is for the prosecution to establish that the evidence is sufficient to put the accused on trial.

An application to cross-examine witnesses will only be granted where special reasons exist for doing so.  In evaluation whether special reasons exist the court will have regard to the need to ensure the case is adequately disclosed, the ensure the issues for trial are adequately defined, the evidence is sufficient to put the accused on trial and the general interests of justice.

The Court will not allow certain witnesses to be called for cross examination, for example complainants in sexual matters or children, unless satisfied that the interests of justice cannot be adequately served except by doing so.

An accused is entitled to plead guilty at any stage during the committal process and have the matter committed to the superior court for trial.  The earlier an accused pleads guilty the greater the discount to which he or she is eligible.

It is therefore very important that a person charged with a major indictable offence seeks legal advice as soon as possible.

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