On 30 April 2018, some very important changes will come into effect concerning persons charged with an indictable offence in NSW. Some of the main changes are:

1. A new procedure for the committal process
2. Allowance for acceptable alternative forms of evidence to form part of a brief of evidence
3. DPP involvement at a later stage
4. A process of ‘Charge Certification’ will take place
5. A mandatory ‘Case Conference’ will take place
6. A ‘Case Conference Certificate’ will need to be filed with the court
7. A change to applicable discounts, which have been legislated and are contingent on the timing of the plea and offers made

The new procedure for the committal process

On 14 March 2018, the Chief Magistrate issued a new Practice Note, Local Court Practice Note Comm 2 which sets out the procedures to be adopted for committal proceedings in the Local Court which are commenced after 30 April 2018

The main steps for committal proceedings will now involve:

• An initial eight-week adjournment for the service of the brief of evidence.
• Followed by a six-week adjournment for the filing of a Charge Certificate.
• Unless a plea of guilty is entered at that stage, a further eight-week adjournment for a Case Conference to take place and a Case Conference Certificate to be prepared.
• An possibility, in certain circumstances, of holding a ‘witness hearing’. The filing of a Case Conference Certificate, along with any amended charge certification.
• At this stage, a plea(s) must be entered. If the accused is entering a plea of not guilty he/she is committed to the District/Supreme Court for trial. If it is a plea of guilty, the accused is committed to the District/Supreme Court for sentence.
• If a person’s ‘fitness’ to participate in proceedings is raised, the committal process can be suspended until that issue is resolved.

Allowance for acceptable alternative forms of evidence to form part of a brief of evidence

Although police are still required to fully investigate a matter and obtain all relevant evidence, agreement has been reached between the NSW Police and the DPP as to what portions of evidence can be served in an ‘acceptable alternative form’ during the committal process, as opposed to serving evidence in an admissible form.

DPP involvement at a later stage

It is expected that a police prosecutor will now appear in committal proceedings until the full brief has been served and the matter is adjourned for the filing of a Charge Certificate.

A process of ‘Charge Certification’ will take place

After the brief has been served, the matter will be referred to the DPP for ‘charge certification’. This is the process whereby a prosecutor considers the brief of evidence and the charge/s that have been laid by the police and is required to certify that the evidence available to the prosecutor is capable of establishing each element of the offences that are the subject of the proceedings against the accused person. This certificate must then be filed with the court and served on the accused.

A mandatory ‘Case Conference’ will take place

After a Charge Certificate is filed, and unless an accused is at that stage prepared to plead guilty, the court will adjourn the matter for a Case Conference. The purpose of the Case Conference is to cause the DPP and the accused’s legal representative/s to come together and determine whether there are any offences to which the accused person is willing to plead guilty.

The Case Conference can also be used to facilitate the provision of additional material, or to facilitate the resolution of issues in the proceedings.

An accused person must be available to give his/her lawyer instructions during the Case Conference.

Prior to the Case Conference taking place, a lawyer will need to explain a number of matters to their client including:

• The effect of the scheme which sets out the applicable sentencing discounts
• The applicable penalties to the certified charges and any other charges which have been offered in the alternative
• The effect on the applicable penalty if a person were to plead guilty to any offence at different stages

A ‘Case Conference Certificate’ will need to be filed with the court

After a Case Conference takes place, the DPP is to prepare, file and serve a Case Conference Certificate which in summary should include:

• The offences charged as per the Charge Certificate
• Any offers by the accused to plead guilty
• Any offers by the prosecution
• Whether the offers have been accepted/rejected
• Offence/s in relation to which the prosecution seek committal
• Any back up or related offences to go on a section 166 certificate
• If an offer to plead has been accepted, details of the agreed facts and/or facts in dispute
• Any Form 1 matters to be taken into account
• Whether or not the DPP has notified the accused person of an intention to make a submission on sentence that the discount should not apply/should be reduced

A change to applicable discounts on sentence, which have been legislated and are contingent on the timing of the plea and offers made 

Although there are exceptions to these provisions, in summary, mandatory sentencing discounts will apply as follows:

• 25% reduction if the plea was accepted by a Magistrate in the Local Court
• 10% reduction if committed for trial and a plea was entered at least 14 days before the first day of the trial
• 5% reduction if a plea is entered and the above circumstances do not apply.

If you or someone you know has been charged with a serious offence, you should get some legal advice to help you better understand the process and to ensure interests are being protected during a very important stage of the process.

Disclaimer: The above information contains a basic summary of the law in NSW as at 9 April 2018. It is not legal advice. If you need legal advice, you should speak to a lawyer.