By Paul Gregoire and Ugur Nedim
Updated on 23 October 2020, the Local Court Practice Note Crim 1 is a document that details how the NSW Local Court organises proceedings around the hearing of criminal offences that are to be tried summarily.
As the first article in the series outlines, this involves dealing with less serious crimes, which are called summary offences, as well as certain more serious crimes, known as indictable offences, and Commonwealth offences carrying 10 years or less, that both sides agree to hear in the lower court.
Schedule 1 of the Criminal Procedures Act 1986 (NSW) lists two sets of indictable offences that can be tried in the Local Court, which are referred to as table matters.
The prosecution must agree to have these tried in the lower court, and in terms of the first set of offences, so does the defence.
This article looks at the NSW Local Court procedures around vacating hearing dates, measures that allow the accused and witnesses to testify from outside the courtroom, it provides the terms for media recordings of procedures and the approach to dealing with defendants with a mental illness.
Vacating hearing dates
When a hearing date has already been allocated and approved, the court will not vacate the date – postpone the proceedings until a later date – unless the party seeking to change the date can show “cogent and compelling reasons”.
To see a court date changed, an Application to Vacate a Hearing Date must be completed and submitted within 21 days of the scheduled court date, or within such a timeframe – shorter or longer – that, in the magistrate’s opinion, will allow for another matter to be heard on the vacated date.
The application is to be dealt with by a magistrate in chambers, and it will only be listed at their direction. The party submitting the application must notify the opposing party or parties that they are applying to vacate the hearing dates.
Audio visual links
Audio visual links (AVL) permit persons in custody to appear in court without leaving prison, as well as providing a means for witnesses to testify from another location.
The practice note provides two sets of procedures relating to audio visual links: those for defendants, and those for witnesses.
In terms of defendants appearing via link and courts without AVL facilities (original courts), the magistrate must adjourn matters and move them to the nearest or most appropriate courthouse with such facilities, in accordance with Local Court online listing and sitting arrangements.
In regard to courts equipped with AVL facilities, presiding magistrates will arrange all matters involving persons in custody from surrounding courts, including bail hearings, brief orders, further brief orders, and listing of matters for hearing or sentencing at original courts.
Regarding matters from surrounding courts ready to be listed for hearing or sentencing, parties must ascertain a suitable date for the adjournment of the matter to the original court via the registrar from the court with AVL facilities.
The practice note stresses that these AVL procedures do not pertain to arrangements already in place for centralised committals nor the courts where committal hearings are dealt with.
Committal hearings are proceedings that involve a magistrate deliberating upon the case the prosecution has against a person charged with a serious indictable offence and whether there is enough evidence to see a jury find them guilty.
If there is enough evidence, the magistrate will commit the matter to a higher court. But if the evidence is insufficient, the magistrate will drop the charges.
Centralised committals happen at most major courthouses across the state. They involve all such committal hearings from a surrounding area being heard at the one court.
If either party has a witness who will appear from somewhere else other than the allocated courtroom, an Application for Witness to Give Evidence via Audio Visual Link or Telephone must be submitted to the court at least 10 days prior to a hearing.
A magistrate in chambers determines a witness AVL application, unless a party indicates they would prefer it to be processed in the courtroom, and the magistrate considers that it’s in the interests of justice to do so.
Defendants with a mental illness
In a measure to assist Corrective Services NSW, psychiatric reports tendered as evidence – including those prepared by Justice Health court nurse clinicians – should be sent back to the prison with the prisoner.
When a psychiatric report is sent back to the prison with the inmate, a copy of the report should also be placed in a sealed envelope addressed to the Nursing Unit manager at the correctional facility or a nominated Justice Health staff member.
Subsection 33(1)(a) of the Mental Health (Forensic Provisions) Act 1990 provides that if the magistrate orders that a defendant with a mental illness be detained in a mental health facility, no bail determination is required.
A bail determination is only to be made if the defendant is returned to the court following the hospital not admitting them for treatment.
Subsection 9(2)(a) of the Court Security Act 2005 (NSW) permits a judicial officer to allow a recording of proceedings be made. This includes by media representatives with the purpose of a recording being for public dissemination.
A media representative who wants to use a recording device during hearings must apply to the presiding magistrate via the registrar.
If possible, this should be arranged at chambers prior to the court date so that arrangements can be made for the positioning of the device.
The approval of such an application is at the discretion of the magistrate, who can place any conditions they see fit upon its use. The magistrate will consider whether it’s in keeping with open justice, the purpose of the recording, any likely disruption or any other relevant matter.
On approval, the media representative must ensure the recording is not disruptive, or the magistrate may order it to cease. A device must not be used to record private conversations, only one recording device can be used, and then only the magistrate can be recorded, unless otherwise specified.
A media representative must cover any additional court costs incurred because of recording arrangements.