Committal Proceedings
C A Porter QC, February 1997
Revised July 2004; Revised by R P Greenhill SC August 2007
Introduction
The Magistrates appointed under the Local Courts Act, 1982 are fully qualified lawyers and in
most cases have a great deal of experience of committal proceedings. They are judicial officers,
entitled to courtesy, respect and assistance from members of the Bar. They have very important
duties to perform under the Criminal Procedure Act 1986 and other legislation in presiding over
committal proceedings. They have heavy lists and should be given accurate estimates by the
Bar as to how long cases are likely to last, so that their lists can be properly planned.
Nature Of Committal Proceedings
It is said that these proceedings are administrative rather than judicial, but in all respects they
are conducted as if they were judicial proceedings. (Maddison v Goldrick (1975) 1 NSWLR 557).
Thus the strict rules of evidence, and procedural fairness apply. The defendant must attend
personally unless excused under s72 of the Criminal Procedure Act 1986 for a period when he
is represented by a barrister or a solicitor.
The leading authorities for committal proceedings being regarded as administrative rather than
judicial are ex parte Cousens 47 SR 145, ex parte Coffey Re Evans (1971) 1 NSWLR 434,
Connor v Sankey (1976) 2 NSWLR 570. The High Court does not doubt that such proceedings
are administrative (cf Sankey v Whitlam 142 CLR 10, Grassby 168 CLR 1) but has expressly left
open the question whether prohibition lies in respect of them (Grassby at 11).
The superior courts are reluctant to interfere with committal proceedings. If they do so it is often
by declaration (cf Sankey v Whitlam (142 CLR 10), Cain v Glass (1985 2 NSWLR 230 at 235)
but note also s.53 of the Crimes (Appeal and Review ) Act 2001 (appeal on question of law only
by leave) and a possible appeal from an interlocutory order under s.5F of the Criminal Appeal
Act. The Federal Court has power to interfere in Commonwealth Prosecutions under
Administrative Decisions (Judicial Review) Act 1977, but is has a discretion as to whether it
should do so, and generally is reluctant to interfere (Seymour v AG 57 ALR 68, Forsyth v Rodda
87 ALR 699). Declaratory relief in committal proceedings might run into problems raised by s.17
of the Supreme Court Act, which may exclude the jurisdiction once exercised by the Supreme
Court except in cases involving procedural fairness.
A Local Court does not possess inherent powers but it has implied powers (Grassby at 16).
However, its powers to stay proceedings are limited. Failure to provide necessary particulars
would be an example of implied power to stay, where the stay might operate until the particulars
were provided. A general stay of proceedings would have to be obtained from the District Court
or the Supreme Court, in the latter case subject to Section 17 of the Supreme Court Act. Note
that the Local Court has power, in an appropriate case, to stay the hearing of an indictable
offence being dealt with summarily : DPP v Shirvanian (1998) 44 NSWLR 129.
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Purpose Of Committal Proceedings
The Magistrate presiding over committal proceedings firstly has to make a direct decision as to
the liberty of the subject, namely whether the defendant should have bail pending the
completion of the proceedings. Then the Magistrate has to decide whether there is a prima facie
case (Section 62) against the defendant, and finally has to decide whether the defendant should
be committed which involves an express finding under Section 64 of the Criminal Procedure Act,
that there is a reasonable prospect that a jury would convict the defendant of an indictable
offence.
Note that the opinion is not necessarily as to the particular charge before the Court, but as to
“an indictable offence”. If the evidence does not support a charge of the particular indictable
offence, but nevertheless supports another charge, then the Magistrate has jurisdiction to
commit in respect of that charge (cf Moss v Brown (1979) 1 NSWLR 114 at 130), subject of
course to the rules of procedural fairness.
If the defendant wants to plead guilty, then under the Criminal Procedure Act the plea may be
made before the Magistrate (s99) who then has jurisdiction to accept or reject the plea (s100).
This means in practice that the Magistrate has to be satisfied by reading the hand up brief, that
there is evidence upon which the defendant could be convicted, and that the defendant fully
appreciates what the plea means.
Summary Jurisdiction Arising Out Of Committal Proceedings
Since 1 September, 1995 the jurisdiction of the Magistrate to hear indictable offences summarily
has been considerably expanded. The relevant legislation is Chapter 5 of the Criminal
Procedure Act. There are two Tables of offences under Chapter 5 (s.259). The offences listed
in Table 1 are to be dealt with summarily unless the prosecuting authority or person charged
elects otherwise. These cover a number of sexual assault offences and there is a very wide
jurisdiction for offences of dishonesty where the value involved is more than $5,000. It is
necessary to check the offences carefully set out in Table 1.
Table 2 comprises a considerable variety of offences including sexual assault offences and
dishonesty offences involving not more than $5,000. These offences are to be dealt with
summarily unless the prosecuting authority elects otherwise.
The penalties which can be imposed for Table 1 offences are set out in s.267 and are much less
than those which could be imposed on indictment before a Judge. Similarly the penalties which
can be imposed for Table 2 offences are set out in s.268 and again they are much less than
could be imposed on indictment.
Once the Magistrate had a discretion as to the exercise of summary jurisdiction, now the
discretion is entirely with the prosecuting authority for Table 2 offences, and with the
prosecuting authority and the defendant for Table 1 offences.
The time for making an election is fixed by the Local Court under s.263 and would usually be
after the delivery of the prosecution brief under s.78 or s.183 of the Criminal Procedure Act. At
an early stage counsel should be ready to make the election on behalf of the client, but of
course only after receiving the client’s instructions. An election can be withdrawn but not after
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commencement of the taking of evidence for the prosecution in the committal for trial
proceedings in a case of a plea of not guilty, or the committal of the defendant in the case of a
plea of guilty (s.264 Criminal Procedure Act).
There is no six month limitation period under s.179 of the Criminal Procedure Act where an
indictable offence is dealt with summarily (s.270). There are appeals under the Crimes ( Appeal
and Review) Act 2001. Part 5 of that Act deals with appeals to the Supreme Court and Part 3
deals with appeals to the District Court. Conviction appeals to the District Court are dealt with
solely on the transcript unless an order is made in accordance with s.19. The criteria for such
an order substantially reflect those discussed below in relation to the attendance of witnesses at
committals. On appeal to the District Court the Judge can impose no higher penalties than could
the Magistrate.
Obviously if a client intends to plead guilty it would normally be done so before the Magistrate,
and accept the Magistrate’s jurisdiction, because that jurisdiction is to impose a much lower
sentence than would be applicable on indictment.
Where the defendant has an election, in a case where there is an intention to plead not guilty,
there are quite a few cases where the Magistrate might be a better tribunal than a jury. Much
would depend upon what is known of the Magistrates likely to try the case, but generally most
Magistrates are well aware of the significance of the criminal onus of proof. They may be less
inclined to be prejudiced against the defendant, particularly in sexual assault cases where some
jury persons may be fanatical, or where the circumstances disclose that the defendant has past
criminal convictions.
Cost Of Committal Proceedings
The trial is the important thing. The client’s resources should not be wasted on committal
proceedings if the defendant is not left with means to pay for the trial (R v Roula Kay (1997) 3
NSWCR 72).
Procedures On Committal
Formerly these proceedings were conducted by police prosecutors, but now they normally only
appear for the purpose of adjourning committal cases. The actual prosecution is conducted
either by a solicitor employed by the Director of Public Prosecutions, or sometimes by a Crown
Prosecutor.
The procedures for committal proceedings are set out in Chapter 3, Part 2, Criminal Procedure
Act 1986 and by and large this is substantially a mirror of Chapter 4, Part 2 which deals with
summary proceedings. Thus s.50 for indictable offences mirrors s.175 for summary offences. It
is wise to read the Criminal Procedure Act completely and carefully. Do not make the mistake of
consulting Chapter 4 for committal proceedings.
All proceedings are now commenced by issuing a Court Attendance Notice (CAN). The
necessity for a Court Attendance Notice applies whether the proceedings are for an indictable
offence or for a summary offence. Section 50 and 175 prescribe the detail that is required in the
notice. It would appear that it is still necessary to ensure that the essential ingredients are
alleged in the CAN (Stanton v Abernathy 19 NSWLR 656). In a CAN for an indictable offence
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the defendant is entitled to a compliance with the rules of natural justice, or procedural fairness,
namely, the defendant must be provided with sufficient information to defend oneself. If the CAN
although valid, does not do this, then in the normal case the defendant is entitled to particulars
(Stanton v Abernathy 19 NSWLR 656). It must be appreciated that under procedures of paper
committals the defendant is in effect supplied with the evidence against him or her, so that it is
only in a rare case that particulars are necessary. However, sometimes the defendant fairly
needs to know how the charges are derived from the statements served upon the defence
(Everton v Public Service Board 3 NSWLR 297, Stanton v Abernathy 19 NSWLR 656).
This is in contrast with the situation with regard to summary offences. Section 12 of the
Criminal Procedure Act expressly provides that a short expression in general terms is sufficient
to state or describe the offence in a CAN.
In respect of NSW offences s.20 of the Criminal Procedure Act provides for amendment of an
indictment with leave of the Court or by Consent. An indictment includes a CAN. In respect of
Commonwealth charges there is express power to amend under s.15C of the Commonwealth
Crimes Act and s.68(4) of the Judiciary Act.
Cases are normally adjourned, or more technically, remanded, on facts related from the bar
table to the Magistrate. Of course, if there is a dispute between the parties there can be sworn
evidence even on a remand application, particularly in cases of a disputed claim that the
defendant is in ill health. Such a question is normally dealt with by a medical certificate, even if
there is a dispute, but in rare cases the doctor may have to give sworn evidence.
Bail is granted or refused in accordance with the Bail Act, and in most cases by consent or on
verbal information to the Magistrate. In difficult cases the defendant may well be advised to call
sworn evidence, and if serious allegations are being made against the defendant, in opposition
to bail, which are being denied, the Magistrate should be requested to decide the application on
sworn evidence. A defendant’s counsel should not lightly accept from the Bar table a serious
allegation made against a client, if it is disputed. However it is usually unwise to call the
defendant on a bail application, and thus expose the client to cross-examination.
Check List When First Briefed
Counsel should check the following matters:
1.
Is it a State or Commonwealth prosecution?
2.
Is there any consent needed to prosecute? (eg. s.78F Crimes Act as to incest). Is the
right to prosecute limited to certain persons? (Corporations Law).
3.
Is there any time limit to laying the charge? (eg. s.78 Crimes Act Saraswati v R 172 CLR
1 (s.78 has now been repealed)). (Corporations Law prosecutions).
4.
Is the charge correct in form? Does it allege all the necessary ingredients of the offence
alleged? eg. Does it allege knowledge of lack of consent under s.61I of the Crimes Act?
Does it supply sufficient particulars even if valid in form?
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5.
Can the proceedings be held in camera? (cf as to some sexual offences, s.78A) and can
there be an order as to non-publication of evidence (s.292 Criminal Procedure Act, and
note s.578A which applies in any event). These sections are perhaps mainly for the
benefit of the victim but in many cases disclosure of the identity of the defendant will
tend to identify the victim. They are also for the benefit of the defendant (Nationwide
News v District Court (1996) 3 CLN 84).
6.
Can the proceedings be heard summarily either with or without the consent of the
defendant? (I have dealt with this already and note that there are equivalent sections in
the Commonwealth Crimes Act).
7.
Has the client any criminal record? This should be ascertained as soon as possible from
the Prosecutor. On this matter you always ask your client, but check just the same,
because often clients try to deceive their lawyers. Forgetfulness can also be a cause.
8.
What did the client say to the police or anyone else in authority? What is alleged to have
been said? Does the client have any copy of a recorded interview? Check the tape of the
ERISP but watch out for what may be alleged to have been said before or after the
ERISP or during any suspension of the interview e.g. while the services of an
independent officer are obtained.
9.
Is there any gap in the chain of proof provided by the statements served under s.75 of
the Criminal Procedure Act so as to raise a defence under s.62 of lack of evidence?
10.
Does the client’s story amount to a defence so as to raise a defence at the trial or even
under s.64?
11.
Does the client wish to plead guilty? If so, does the client in fact tell a story amounting to
guilt? Does the client appreciate the elements of the charge, and the consequences of a
plea of guilty? It is not unknown for people to want to punish themselves and plead guilty
when innocent.
12.
What cross-examination is desired of witnesses? Note under sections 91 and 93:
(a)
Alleged victims of child sexual assault offences who were under 16 at the time of
the offence and are under 18 at committal can not be directed to attend for crossexamination. (s91(8)).
(b)
The need for special reasons for victims falling within certain categories (s.93). It
is necessary to check carefully in every case whether the witness falls within one
of the categories.
(c)
The need for substantial reasons for other witnesses (s.91).
Further Preparation For Committal
It is essential to decide what Counsel hopes to achieve by the committal. If the defendant is
obviously going to be committed for trial, the committal proceedings enable the person charged
to hear the prosecution evidence and to cross-examine the prosecution witnesses. (Grassby v R
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168 CLR 1 at 15, Barton v R 147 CLR 75 at 98 and 99) subject to s.91 and s.93 of the Criminal
Procedure Act.
Where committal is likely or inevitable, care should be taken not to improve the Crown case by
useless cross-examination, and often it is wise to avoid firing the best shots until the trial. There
is no need to prepare the witness for cross-examination before the jury. Furthermore one has a
duty to one’s client to conserve costs, when the client will need resources for the trial, and one
has a duty to the Court not to waste time. Note s.69 of the Criminal Procedure Act which gives
the Magistrate power to terminate “examination or cross-examination on any particular matter”.
Waste of the client’s means on committal proceedings may deprive legal aid for the trial (R v
Roula Kay (1997) 3 NSWCR 72)
Note that under s.91(7) the cross-examination may not go beyond matters that were the bases
of the reasons for giving the direction for cross-examination, without first satisfying the
Magistrate that there are substantial reasons, in the interests of justice, for the further questions.
Hence the need to cover all matters when making the original application to the Magistrate for
his direction.
If it is thought that there is a gap in the prosecution case so that the defendant may be
discharged under s.62 and s.66 every care should be taken not to fill that gap by unwise crossexamination. If there is a gap there, do not attempt to gild the lily. Such attempts usually finish
up with the result that the gap is filled. This is a general rule of cross-examination. If you have
the right answer do not repeat the question and finish up with the wrong answer.
If in fact it is thought that there is a reasonable chance of having the defendant discharged
under s.66 by breaking down the prosecution evidence, then the tactics are very similar to those
to be employed at a trial. In this regard, one must remember the vital rule that every question
asked is a risk and it should not be asked unless the likely advantages of the question exceed
the danger of asking it. Similarly every witness called is a risk and witnesses should not be
called unless the likely advantages exceed the likely disadvantages. Showing off for one’s client
may lose the case.
Note that as a general rule the defendant is not bound to put the defence to the witnesses, or to
put anything to the witnesses against the defendant at the committal proceedings (cf Wright 49
A Crim R 462 at 464-5). The rule in Brown v Dunn (1893) 6R 67 does not apply in committal
proceedings. It does apply in criminal trials on indictment, and it would apply to an indictable
matter heard by the Magistrate as a summary matter. Otherwise the right to silence usually
prevents any comment on failure to raise a defence (Petty 173 CLR 95). Care must be taken
however, to ensure that no inconsistent explanation or defence is raised at the committal to the
defence at the trial, because then it may well be possible for the Crown to draw attention to the
inconsistency or failure to raise a matter when an apparently complete defence was raised (cf
generally, Wright 49 A Crim R 460), Reeves 29 NSWLR 109 at 111) but cf Petty 173 CLR 95)
It is very dangerous indeed to follow the practice of having no idea of what the defence is and
vigorously cross-examining all witnesses in the hope of finding a defence or breaking down the
chain of proof. It is, of course, quite improper to put suggestions of misconduct to witnesses if
there is no basis for those suggestions. Useless questions, even if not damaging, waste the
client’s means and the Court’s time.
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Note s.293 preventing cross-examination of the complainant in sexual offences about sexual
reputation or prior sexual experience or lack of the same. Questions may be permitted under the
exceptions ss.(4) and (6) but only after obtaining the Magistrate’s permission (ss.5). Note the
section only applies to prescribed sexual offences and this may be very important in respect of
old offences.
The Paper Committal Procedures
The procedures laid down in Chapter 3, Part 2, Division 3 of the Criminal Procedure Act are for
everyone’s benefit, and it is incumbent upon Counsel in the interests of the client and in the
interests of the general administration of justice to do one’s best to make these provisions work.
This means not requiring the attendance of witnesses unless there is a good purpose.
The fundamental concept is that written statements have to be provided (except in the rare case
where the witness refuses to give such a statement) and all the statements of the witnesses
proposed to be called are served upon the defendant.
The defendant is then given a reasonable time in which to request that some, or all of the
witnesses be called to give evidence, and to give reasons to the Magistrate who, if convinced,
will direct the attendance of the witness. In the case of a witness so called, the defendant may
accept the witness’s statement as evidence in chief and cross-examine, or formerly the
defendant could insist upon the evidence being given completely without the statement (Manley
v DPP Loveday J. 30.8.91). The position seems to be similar under s.91(4) but there would
have to be express consent to the admission of the statement. If the defendant fails to give
notice in the time directed for to apply for the witness to be called, the Court may well have no
discretion to direct that witness to be called, and accordingly care must be taken to apply in time.
The temptation is to apply for all the witnesses to be called, or most of them, without giving the
matter any real thought. This is particularly so if the case has not been properly prepared on the
defendant’s behalf. Such a course of action, or rather inaction, is a breach of counsel’s duty to
the Court, and to the client and may result in no witnesses at all being called. Great care should
be devoted to deciding who is needed and why. Succinct, convincing and complete reasons
should then be prepared to persuade the Magistrate to direct the desired witnesses to attend for
cross-examination. A special mention day is appointed after receipt of the police brief in order to
decide which witnesses will be called.
It should be remembered that the idea is to shorten the time of the hearing in the interests of all
parties, (not least of all the defendant) and of the administration of justice, and witnesses will not
be directed to attend unless there are substantial reasons for doing so. In the case of most
witnesses required to attend it should not be necessary for them to give evidence in chief, but it
should be sufficient to consent to the statement to be tendered in evidence as the examination
in chief. The witness then swears to the truth of the statement and may be asked further
questions in chief. The cross-examination follows.
The statements are usually prepared by police officers and quite frequently contain inadmissible
material. Do not waste too much time on nit-picking objections. Only object to material which
matters. Admission of statements “subject to objection’ is a way to save time, making any
necessary objections during final address.
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Assuming compliance with s.91 and s.93, in the case of some sexual assault offences, and
particularly in the case of evidence of young children, it is often thought that the witness should
be required to give evidence without the assistance of the statement, in the hope that the
evidence will not come up to the statement. On the other hand it should be remembered that
such a course may result in the witness giving much better evidence than that contained in the
statement, and also getting invaluable practice as to how to give evidence at the trial.
Accordingly a decision should not be made according to some rule of thumb, but only after a
careful consideration of all the factors involved. It should not be assumed that it is always in the
defendant’s interest to cross-examine a young complainant. If the accusation is false, you may
be helping the witness to make it more convincing at the trial.
If there is a genuine gap likely, or even possible, in the prosecution case, then by all means the
gap should be exploited in the interests of the defendant, but if it is simply a matter of putting the
prosecution to expensive proof when the actual fact is not really disputed and in fact can be
proved, then what is the point of the client and the community wasting money about it?
In criminal cases, as in any form of litigation, success depends upon identifying the real issues
and fighting those. Splatter gun defences rarely succeed. It is a betrayal of your client to indulge
in cross-examination without a real purpose in mind.
Similarly there is no point in objecting to the form of evidence if the matter is not in dispute. A
counsel who rarely objects will be listened to carefully on the objection that matters. A counsel
who frequently objects is likely to be overruled on the rare occasions when Counsel has a good
point.
Directing Victims To Attend
Sections 93 and 94 of the Criminal Procedure Act prescribe the circumstances under which
victim witness are to be required to attend and give evidence in committal proceedings. The
combined effect of these sections is that alleged victims of certain offences of violence shall not
be required by the Magistrate to attend for cross-examination unless satisfied “there are special
reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.”.
It is first necessary to examine very carefully whether s.94 and therefore s.93 apply to the
alleged victim. For example, it may not in the case of old sexual assault offences that were not
prescribed sexual offences under the Crimes Act 1900 on the date that they were committed.
The section seems to follow s.106(6a) of the South Australian Justices Act. In R v Gunn (1977)
17 SASR 165 the South Australian Full Court considered the expression “special reasons”.
Some relevant matters would be probable final disposal of the case under s.s.62 or 64 of the
Criminal Procedure Act, the fact that the defendant will probably give evidence and that the
victim would not be embarrassed (ibid at 166), that the victim’s statement is ambiguous or
vague especially as to dates (R v Kennedy (1997) 94 A Crim R 341). A real prejudice likely to
be suffered at trial by the defendant “over and above the mere prejudiced of not being able to
cross-examine twice” (ibid 171) is a special reason (Byczko (1977) 16 SASR 506 at 519). The
case must be outside the ordinary run of cases (Gunn at 174). A real dispute as to the identity of
the perpetrator may raise a special reason ((ibid) at 188) and an unconditional undertaking to
call the defendant would be a powerful reason (ibid at 188). Special reason to doubt the
complainant (eg. if the witness were inciting other complaints or had at one time withdrawn the
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allegations), would be a special reason (Generally of W v AG (1993) 1 NZLR1), Baines v Gould
67 A Crim R 297 at 303. Metanomski 65 A Crim R 352, Kennedy 94 A Crim R 341.
Only substantial reasons are required for a direction under s.91 in the case of other witnesses,
not so powerful as special reasons (Losurdo (1998) 101 A Crim R 1652). Substantial reasons,
according to the Attorney General’s first reading speech, include a real issue under s.64 or the
likely effect on a significant witness of a matter of credit. Unlike the now repealed s.48E of the
Justices Act 1902 there is no legislative requirement that a Magistrate must give reasons for
refusing to give a direction under either s.91 or s.93. Presumably, however, principles of
procedural fairness would still require this to be done. A magistrate’s refusal to order a witness
to attend can not be challenged under s5F of the Criminal Appeal Act (R v Colby (1995) 84 A
Crim R 125). Section 53(3)(a) of the Crimes ( Appeal and Review) Act 2001 provides for
appeals on questions of law alone to the Supreme Court with leave by any person against
whom an order has been made in committal proceedings. However, if the interpretation of order
under s5F as referred to above is applied to s53(3)(a) then no appeal would lie under this
section either. It would appear that in appropriate cases the correct procedure would be to
apply for relief on administrative law grounds seeking declaratory relief and relief in the nature of
mandamus under s.69 of the Supreme Court Act 1970. (TS v George, Studdert J 14.4.98).
Mandamus To The Magistrate
Apart from the declaratory relief, there is the possible remedy of mandamus. Mandamus might
be useful with regard to s.91 or s.93 but only if the Magistrate has made such a mistake as to
discretion, as to amount to a constructive failure to exercise that discretion. It is not available as
a simple appeal (Exp Hebburn Ltd re Kearsley Shire 47 SR 416).
Section 17 of the Supreme Court Act may raise a problem as to challenges to committal
proceedings, and it does not prevent proceedings to restrain excess of jurisdiction or denial of
natural justice (breach of the rules of procedural fairness) (Chow v DPP 28 NSWLR 593).
However Adler v District Court NSWLR 317 would appear to permit much prerogative and
declaratory relief despite s.17 even if there is no excess of jurisdiction or denial of procedural
fairness.
Calling Evidence On Committal
I am of course dealing with the question of true committal proceedings. I am not dealing with an
indictable matter heard as a summary matter which proceeds like any other summary hearing.
If it is impossible to make a reasonable submission under s.62 or if that submission fails, then
the question of the reasonable prospect that a jury would convict the defendant arises under
s.64 of the Criminal Procedure Act. Should one call the client? Should one call witnesses? The
two questions are quite distinct. Counsel would only contemplate adopting the former course if
there was a very real chance of the defendant being discharged under s.66 or else there was a
strong possibility that the Director of Public Prosecution might refrain from filing a bill in the light
of the evidence called. Do not put too much faith in the latter possibility.
Normally the prosecutor should call all material witnesses in committal proceedings and cannot
in the exercise of prosecutorial discretion call only the minimum evidence required to make out
a prima facie case. The prosecutor should not avoid calling a witness for tactical reasons. If
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there is a breach of this duty, the District Court can intervene by staying the proceedings and
the Supreme Court may either stay the proceedings or even set aside the committal order
(Basha 30 A Crim R 337, Harry ex parte Eastway 20 A Crim R 63 at 70-71). It follows therefore
that it is unlikely that the defendant will have available a decisive witness in the defendant’s
favour, because such a witness should have been called by the prosecution, unless there were
good reasons for the Prosecutor not to accept that witness’s evidence. On the other hand the
prosecution would not know about alibi witnesses and it could be that it would be possible to call
evidence of a conclusive alibi without calling the defendant. In any event an alibi has to be
notified under s.150 of the Criminal Procedure Act and it may be better for such witnesses to be
cross-examined openly in Court, rather than interviewed privately by police officers. Further
reasons for calling a witness would be to preserve the evidence of the witness under s.285 or
s.286 of the Criminal Procedure Act, or to guard against the witness becoming hostile in the
future, eg. boyfriend and girlfriend.
Note that under s.63 of the Criminal Procedure Act the defendant must be asked after an
adverse finding under s.62 whether the defendant wishes to say anything, and the practice is
that the Magistrate permits counsel to tell the defendant what to say. Normally the statement is
“I am not guilty and reserve my defence”, or simply “I am not guilty”. It would rarely be wise to
say any more than that.
If it is decided to call other witnesses it must be appreciated that if the defendant is committed,
then the prosecution has two chances of breaking the witness down in cross-examination, one
at the committal proceedings and the second at the trial. The same, of course, applies with even
greater force to the question of calling the defendant. It is therefore very dangerous to call a
defendant in committal proceedings. As a broad rule, unless the chances are clearly better
than 60/40 that if the defendant gives evidence there will be a discharge under s.66 then the
defendant should not be called. Sometimes the story to be told is so simple that the risks of it
being broken down by cross-examination are minimal. More frequently the defendant is nervous
and likely to be not all that good a witness either at committal or trial, and it is perfectly possible
for an innocent person to contradict himself many times under the stress of a criminal charge.
It is a very serious step to call the defendant in committal proceedings, and if at all possible
inexperienced counsel should discuss the matter with an experienced counsel before making
the decision to call the client.
It must be appreciated that it is by no means necessary to call the client in order to obtain a
discharge under s.66. In fact most discharges under the section are obtained without calling the
defendant.
Submissions To The Magistrate
There is little point in making an absolutely hopeless submission to the Magistrate. Furthermore
do not insult the Magistrate’s intelligence by telling the Court what the elementary legal rules are,
when Magisterial knowledge and experience will usually exceed yours.
If a submission is made by the defence under either s.62 or 64 the normal rule adopted by the
Magistrates is that the Prosecution addresses first and the Defence next. This is only a rule of
practice and sometimes it might suit a Magistrate to depart from it.
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The submission under s.62 is that the evidence is not capable of satisfying a reasonable jury
beyond reasonable doubt that the defendant has committed an indictable offence (not
necessarily the offence with which he has been charged). In considering the evidence at this
stage the Magistrate accepts the Crown case at its highest, and does not consider in the
defendant’s favour contradictatory evidence or successful cross-examination, (except to the
extent that the witness changes his or her evidence) or even the defendant’s denial (cf
Wentworth v Rogers (1984) 2 NSWLR 422) which was decided under the now repealed
Justices Act 1902 but probably still applies to s.62).
The submission under s.64 is when the Magistrate must consider all the evidence including the
denial by the defendant (not necessarily on oath) and make an assessment as to the likely
result of a trial (Allen v DPP Saffron v DPP 16 NSWLR 397). Samuels JA in Saffron suggested
that really the Magistrate must reach his or her own conclusions on the basis that a reasonable
jury would agree with that decision. (403).
The s.64 submission comes after all the evidence has been given, that is including any
evidence by or on behalf of the defendant. The s.62 submission comes at the end of the
prosecution case. The s.64 submission will normally not be considered until the defendant has
been addressed by the Magistrate pursuant to s.63. Under s.64 the Magistrate must reach a
decision that there is a reasonable prospect that a reasonable jury, properly instructed, would
convict the defendant of an indictable offence.
After Committal
After committal the defendant is given notice of a right to legal aid and also is given notice of the
obligation under the s.150 of the Criminal Procedure Act to give notice in accordance with the
section of any alibi defence. As stated previously it is sometimes quite a good idea to comply
with the section by calling the alibi witnesses on the committal.
The Magistrate then considers bail for the defendant and it may well be that the bail will be
different to the bail applying throughout the committal proceedings. Unless one has ascertained
from the prosecution that there will be no application for different bail, it may be wise to have
any surety present at Court in a case where a surety is likely to be required, so that the new bail
can be entered into promptly without the defendant being held in custody. If any bail conditions
are imposed, counsel should ensure (as well as the solicitor doing so) that the defendant clearly
understands the conditions of bail, and is advised as to the serious consequences of not
complying with those conditions. The Magistrate is entitled to rely upon counsel doing this.
Throughout the committal proceedings the defendant is known as the “defendant”, but at the
trial on indictment becomes known as the “Accused”. After conviction the accused is usually
referred to as the “prisoner” even if allowed out on bail, pending sentence.
After committal the defendant is entitled to a copy of the transcript free of charge whether
privately represented or not (s.114).
If it is proposed to make a “no Bill” submission, it is wise to inform the Director of Public
Prosecutions that this will be done. There is normally a considerable delay between committal
and obtaining the depositions of the committal. It should be noted that the no bill submission can
be much wider than the submissions made under s.62 and 64 of the Criminal Procedure Act.
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Questions of age and health of the defendant, and policy matters such as the trivial nature of
the offence may arise.
Costs In Committal Proceedings
The Costs in Criminal Cases Act 1967 applies to summary offences and indictable offences,
and “in any proceedings relating to any offence” which would include committal proceedings.
However such applications are rare in the Local Court. The reason is that there is power to
grant costs against the prosecutor in summary cases under s.214 of the Criminal Procedure Act
and also against the prosecutor under s.116 in committal proceedings.
If the Magistrate hears and determines a Table 1 or Table 2 indictable offence, the Court would
have power to order costs against the prosecutor in the same way as in any other summary
case. That is subject to the limitations provided for by s.214. If the defendant is discharged
under s.66 then the Magistrate has power to award costs under s.116, subject to the restrictions
in s.117. These sections very much restrict the power to order costs against public officers.
In brief the defendant, to obtain an order for costs has to show fault on the part of the
prosecution as to investigation, decision to prosecute or conduct of prosecution. There is a final
power to award costs “because of other exceptional circumstances relating to the conduct of the
proceedings by the prosecution”.
Practice Notes.
You should familiarize yourself with the various relevant Practice Notes of the Local Court which
can be located at :
www.lawlink.nsw.gov.au/lawlink/local_courts/II_localcourts.nsf/pages/lc_practice_collections.
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