What are Committal Hearings?

Serious criminal cases are normally finalised in the higher courts such as the District or Supreme courts.

However, you may have noticed that defendants in serious cases attend the Local Court at the start of the proceedings.

Why is that?

It’s because all criminal cases will normally start off in the Local Court, no matter how serious they are.

They will not all be finalised there, in fact some offences cannot be finalised in the local court – they must go up to a higher court. These are called ‘strictly indictable offences’.

The first step in the court process for serious offences is to go through the local court process and to reach a committal hearing.

At the start, the case will be listed for a ‘mention’ and the local court magistrate will order that police must give you all of their ‘evidence’ within a certain time period, normally 6 weeks. That ‘evidence’ will usually consist of witness statements, police statements, photos, forensic evidence, expert statements, phone records, CCTV footage, surveillance records etc.

Unfortunately, where forensic evidence is involved, the case is likely to be significantly delayed and the case may not reach a committal hearing for several months, or sometimes even more than a year.

Committal hearings are basically the stage where the prosecution have to prove that a case is strong enough to actually progress towards a trial.

The magistrate doesn’t deliver an official verdict during a committal hearing as to whether the defendant is guilty or not; instead committal hearings serve a more administrative purpose.

The point of a committal hearing is to decide whether there is enough evidence to determine whether or not the person should go to trial at all.

According to the Criminal Procedure Act NSW, a magistrate’s job is to decide whether or not there is a reasonable possibility that a reasonable jury, properly instructed, would convict you. This is called the ‘prima facie test’.

If not, the magistrate must immediately order the defendant’s discharge.

The other matter which may be decided at a committal hearing is whether or not the defendant will receive bail.

However, this does not mean that the many rules surrounding court procedure don’t apply.

You (or your lawyer) must still turn up.

Committal proceedings are normally held in an open court, so the public can attend, and all the strict rules surrounding evidence still apply.

Do I have to plead at a committal hearing?

No, you don’t have to but you can.

If you plead guilty, the magistrate can decide whether or not to accept the guilty plea.

If the plea is accepted, the magistrate will commit you to the district or supreme court for your sentencing proceedings.

If you plead not guilty or don’t enter a plea, then it will be up to the magistrate to decide whether or not your case should progress any further.

If you are not represented (although you probably should be for all serious matters) it is unwise to say anything else or call evidence during a committal unless you know what you are doing.

Although the magistrate will ask if you want to do so, it is rare for you to be able to gain any advantage from doing so, and any anything you say could later be used against you.

There are generally 3 broad categories of committal hearings:

1. A waiver of committal
2. A paper committal, and
3. A defended committal hearing

Waiver of committal – this is where you choose not to have a committal hearing at all. The prosecution will need to consent to a waiver of committal and if they do, the committal process is skipped and the case moves along towards a trial. These were only introduced a few years ago but have proven to be very popular as they can save time and expense caused by the committal process.

Paper committals – this is where the prosecution’s ‘brief of evidence’ (the statements etc) is handed up to the magistrate who then decides whether there is enough evidence for the case to continue to the higher court an move along towards a trial. In practice, the magistrate will normally only have a very short glance at the materials and then order that the case is committed to the higher court. Many lawyers therefore believe that paper committals are a waste of time and the more efficient process is a waiver.

A defended committal hearing – this is one where witnesses may be directed to attend. These kinds of hearings are rare, as they tend to be quite lengthy and expensive.

There is no general right to have a witness attend a committal hearing, and so you must provide “substantial reasons,” in the interests of justice for the witness to be there to give oral evidence.

An application to have witnesses attend a committal hearing is made by a defendant under section 91 of the Criminal Procedure Act 1986 (NSW).

It is not unusual for the prosecution to agree to bring along certain witnesses and to also agree about the scope of questioning that a defence lawyer may ask them.

However if they don’t agree, the defence will normally prepare written submissions about why certain witnesses should be ordered to attend court.

That application, called a ‘section 91 application’, will then be heard on a date before the committal hearing itself.

A section 93 application is similar, but applies when the witness is a victim.

The courts are reluctant to force alleged victims to attend court for committal hearings.

The reasoning behind this is that an alleged victim should only have to go through the trauma of testifying once; at the jury trial.

So you want the alleged victim to be present at committal, the test is even stricter than for other witnesses; there must be “special reasons” in the interests of justice why the alleged victim should attend.

Many criminal lawyers will generally advise against a defended committal hearing, because:

• It may ‘show your cards’ to the prosecution,
• It may give the prosecution witnesses a ‘practice run’ and allow them to correct mistakes in the lead-up to trial, and
• It can be very expensive.

These may all be valid reasons for opting for a waiver or paper committal.

Another disadvantage of defended committals is that, even if the magistrate dismisses the case, the prosecution can still choose to ‘revive’ the case ie to keep it going by issuing what’s called an ‘ex officio indictment’.

So some lawyers may think, ‘what’s the point of running a defended committal if the prosecution can just override the magistrate’s decision?!’.

Well it should be borne in mind that, even though the prosecution may revive a case, the Prosecution Guidelines state that this should not generally be done.

So getting a case dismissed at committal will often mean that the case is finished altogether and your client can get on with his or her life.

It will often be beneficial to run defended committals in certain cases where the issues are narrow, such as identification cases where the identification of your client is tenuous.

In fact, cases based upon identification by a single witness can often fall-apart through effective cross-examination of that witness at committal.

A defended committal may also be run to clarify particular issues, even if you aren’t aiming to have the case dismissed altogether.

Asking specific sets of questions to specific witnesses can often clear-up a significant issue and/or point you in the right direction regarding your investigations and trial preparations.

If a case is dismissed at committal, it may be possible for your client to have costs awarded in their favour. A cost application can be made under sections 213 and 214 of the Criminal Procedure Act which allows for costs to be awarded in certain limited circumstances such as where the prosecution acted in bad faith or without any reasonable cause or where the investigation was improper or unreasonable.

A magistrate may choose to award costs even if police withdraw the charges before committal or if your client is committed for trial for a different offence to the one that was stated in your court attendance notice.

So there certainly are cases where a contested committal will be the best option.

If you have been charged by police and are approaching a committal hearing, it may be worth considering seeking advice from an experienced criminal lawyer regarding your best option and the likely outcome.