By Paul Gregoire and Ugur Nedim.
A practice note is a guide produced by a court to set out how it manages its cases and the procedures that apply.
The Local Court Practice Note Crim 1 is the document setting out criminal case management within the NSW Local Court. And it was updated on 23 October 2020.
The current practice note is divided into four parts, detailing an introduction, a section on summary procedures, as well as sections on specific proceedings and diversionary programs.
There is also a part on applying to give evidence other than in person, along with the applicable forms involved.
This article and those following detail the way in which the NSW Local Court is managing its criminal jurisdiction at present.
The document begins by detailing the procedures for offences dealt with summarily.
A summary offence is dealt with by the Local Court and these crimes are seen as less serious, while indictable offences are more serious and are usually tried in the NSW District Court.
However, there are a number of indictable offences that can be dealt with summarily in the Local Court. And the decision as to whether to proceed on indictment is given to the prosecution and at times, the defence.
The practice note details procedures covering summary offences, indictable offences to be dealt with summarily unless the prosecution or defence elect otherwise, and Commonwealth offences carrying 10 years or less, which the prosecution and defence agree should be heard summarily.
However, procedures for domestic violence offences do carry variations and are detailed later in the practice note.
Table matters and Commonwealth offences
Indictable offences that can be tried summarily are contained within schedule 1 of the Criminal Procedure Act 1986 (NSW) (the CPA).
Table 1 lists offences that the prosecution or defence can decide to deal with on indictment, while for those listed in table 2, it’s up to the prosecution to make the decision. The offences listed in schedule 1 are termed “table matters”.
Referred to as first mention, the initial time a matter comes before the court is when an accused makes a plea.
If there has been no election to try a table matter on indictment, and the accused enters a plea of not guilty, the magistrate will order the prosecution to provide its brief of evidence.
However, if the accused pleads guilty, the prosecution is then entitled to a two week adjournment to consider whether to elect to proceed on indictment. And the police statement of facts – details that if established would provide a conviction – are not tendered at this point.
The decision to proceed with a table matter on indictment must be made on or by the first date the matter returns to court after an order has been given to provide the brief of evidence, which is usually on second mention.
And if no indictment election is made then, proceedings continue summarily.
In regard to a “Commonwealth optional indictable matter” a decision on whether to proceed in a summary manner must be made by the time the plea is entered.
If a decision to proceed on indictment on a table matter, or a party doesn’t concede to a summary hearing for an applicable Commonwealth offence, then the proceedings should continue on under the provisions set out in the Local Court Practice Note Comm 2.
If the accused pleads not guilty on first mention, then the magistrate or the court registrar must make an order that the prosecution serve its brief of evidence on the accused within four weeks, and there must be an adjournment of proceedings for the next mention set for seven weeks’ time.
Part 5 of the Local Court Rules 2009 (NSW) stipulates how the service of the brief of evidence to the accused must be carried out.
In regard to offences that don’t need a brief of evidence – as set out under regulation 24 of the Criminal Procedure Regulation 2017 (NSW) – the matter is to be listed for the next hearing without a brief order being served.
An evidence brief must include a Local Court Listing Advice that details the statements contained within it, as well as indicate any member of the NSW Police Force being called to corroborate the evidence in chief of any other member of the police. This is known as a corroborative witness.
Unless the accused pleads guilty at second mention, the Local Court will list the matter for a hearing date at the first available opportunity. Any further adjournments or variations on this won’t be granted unless the court determines it to be in the interests of justice.
A failure to finalise an evidence brief within the stipulated timeframe doesn’t guarantee a further adjournment. And unless a guilty plea is entered or the interests of justice require otherwise, the matter will be listed for a hearing, and the balance of the brief must be served within 14 days prior to it.
But if the court is advised that the failure to finalise the brief is due to delays in forensic analysis of material, the court will consider adjournment if the date the material was sent for analysis is provided, and the court is satisfied that this evidence will assist in its determination.
Notices of Appearance
In cases where the accused is represented by a solicitor or a barrister, that legal representative must provide a signed copy of the Notice of Appearance to both prosecution and the court, at the time the brief service order is made.
And at next mention, the lawyer must provide both the court and the prosecution with a completed Court Listing Advice, while the prosecution must indicate whether any police corroborative witness will appear via audio or video link.
The provisions relating to prosecution witnesses giving evidence via audio or video link are set out in section 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
As well, when a matter is listed for hearing, the court can order that a witness appear in person, if their written statement hasn’t been served to the defence or it hasn’t been established whether they’re a corroborative witness or not, or an appropriate audio or video link is unavailable.
Any audio or video link used in relation to a witness appearance must be capable of being recorded by the court.
The prosecution can only call a witness for cross-examination if they’ve been nominated on the Court Listing Advice for further questioning.
Although, any notation on a listing made by the accused’s lawyer regarding a witness not being required for cross-examination doesn’t prevent the prosecution from calling them up if they’re of the opinion the witness is required to undergo more questioning.
And in accordance with section 216 of the CPA, the court may order a party to pay the other’s court costs if its satisfied additional costs have been incurred during this process because of unreasonable conduct or delays.