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By Ron Hoenig
Public Defender
The purpose of this paper is to advise of the procedures to be applied for persons charged with an indictable offence that is not to be dealt with summarily. This paper deals with how a solicitor for a legally-aided person should prepare matters, how and when one should take instructions, how and when to brief a Public Defender or other counsel and what should be contained in the brief to counsel.
If a person is charged with an indictable offence that is listed in Tables 1 and 2 to Schedule 1 of the Criminal Procedure Act 1986, the first question a solicitor should ask is whether or not one should seek that the matter be dealt with summarily.
Indictable Offences listed in Table 1 are to be dealt with summarily unless either the Prosecutor or the accused elect to have the offence dealt with on indictment. Indictable offences listed in Table 2 are to be dealt with summarily unless the Prosecutor elects to have the offence dealt with on indictment.
In my view, one has to be very careful in electing to have a matter dealt with on indictment because the range of penalties that these days flow from convictions of indictable offences may well be far harsher than what a magistrate will impose.
The magistrate's maximum penalties for Table 1 and 2 offences are set out in section 267 and 268 of the Criminal Procedure Act and s.58 of the Crimes (Sentencing Procedure) Act 1999 limits the Local Court in the imposition of consecutive or partly concurrent and partly consecutive sentences to a maximum of five years.
Generally speaking, unless one judges that one's client has a strong defence or a defence that will more likely appeal to a Jury, one should be very cautious about electing the matter be finalised on indictment.
This will always depend upon who the magistrate is, one's experience of the magistrate, the client's record, and the nature of the facts. Remember always that there is a right of appeal against the sentence imposed by a magistrate to a District Court Judge as is there a right of appeal against conviction to a District Court Judge where no right of appeal otherwise lies to the Court of Criminal Appeal.
Section 60 of the Criminal Procedure Act requires the magistrate to set a timetable for the service of the prosecution's brief and a timetable for the defendant to indicate a request for the attendance of witnesses to give evidence.
After the service of the brief, it will be only then that an accused's solicitor is aware of the full nature of the prosecution's allegations against an accused. It is at that time important to take full instructions from the accused.
Unfortunately, in recent times solicitors trying to cope with busy lists, busy practices, the limited remuneration of legal aid matters and a variety of other reasons, the practice of taking full and comprehensive instructions seems often not to reach the standard they once did. Whilst I mean no disrespect, my criticism is intended to be constructive and perhaps not applicable to much of this audience.
I cannot impress how important it is at an early stage to take proper detailed instructions from one's client and particularly a detailed proof of evidence. Firstly, because it is fresh in the mind of one's client and, secondly, it is extremely difficult to make judgements for future conduct and disposition of a matter without full instructions having been taken from the client.
In my view, it matters not what matter one has conduct of, there is no substitute for full instructions, which includes a detailed proof of evidence of one's client.
If the client instructs you to plead guilty, then firstly make sure you obtain from the client written instructions to that effect and have the client sign them. The instructions should ideally repeat the terms and elements of the offence as being those acts that the client acknowledges that he/she is admitting. The magistrate will commit the defendant for sentence to the next sittings.
Following the committal for sentence, solicitors should then prepare a brief to the counsel incorporating in the brief all of the Crown case and comprehensive instructions obtained from the client, together with any observations to counsel that are necessary for counsel to provide further advice as to the conduct of the proceedings.
One should not simply facilitate the committals for sentence, as opposed to carefully examining the nature of the charges and whether they are appropriate for a given set of facts and the instructions you have taken. There is room for negotiation at the committal stage. You must bear in mind that pleas of guilty at the earliest opportunity will attract a discount of a sentence by 25% and negotiating a plea in the Local Court will avoid a later argument as to whether that plea has been entered at the earliest opportunity and whether, as well as the utilitarian value of the plea, it is an indication of remorse.
Changes in the legislative pipeline will result in even less flexibility if a plea is not entered in the Local Court for charges settled, and thereby representing the earliest opportunity. If solicitors are unsure of the charge or need a Public Defender to negotiate a plea with the DPP or a Crown Prosecutor, solicitors may brief the Public Defender prior to the defendant being committed for sentence.
In some courts, when a defendant is committed for sentence, a practice has developed whereby pre-sentence reports are sought in the intervening period between committal for sentence and appearance in the District Court. In my view, one should be extremely careful about requesting a pre-sentence report without advice from the Public Defender or some other counsel, unless you are relatively confident as to what is likely to be in the pre-sentence report.
Where there is to be a plea of not guilty, comprehensive instructions should be obtained on receipt of the prosecution's brief. Following the obtaining of instructions, the Public Defender should be briefed to advise whether or not applications should be made for witnesses to attend pursuant to s.91 of the Criminal Procedure Act 1986.
Although committal proceedings are an executive or ministerial function, committal proceedings are an extremely important part of the criminal trial process. As Butterworth's points out at page 6619, it enables the person charged to hear the evidence against him or her and to cross-examine the prosecution witnesses. It enables a person to put forward his or her defence if they wish (this is very rare, of course). It also can be very effective to filter out those prosecutions, which might look quite strong on paper but once the witnesses have given evidence and have been cross-examined, the strength of the prosecution case might be quite different.
Even though the magistrate might be bound to commit a defendant for trial, the committal process enables the DPP to consider, after reading the transcripts, whether a trial should proceed, whether some other maybe lesser charge should be preferred, or perhaps enable the accused to submit a 'No Bill' application, or enable a plea of guilty to be negotiated to a lesser charge.
The courts have held repeatedly that the purpose of committal proceedings is to ensure the facilitating of a fair trial.
Sometimes, when witnesses should have been cross-examined at committal proceedings and were not cross-examined, the District Court or the Supreme Court may have to conduct a "Basha" enquiry, which involves cross-examining the witnesses without a jury present so as to ensure a fair trial. Whether a trial judge allows a "Basha" enquiry is a matter for the discretion of the trial judge. No doubt, a matter that would go to the trial judge's discretion is if one waived the right or entitlement to cross-examine at committal.
The other matter that one should bear in mind in relation to committal proceedings relates to provisions of s.285 of the Criminal Procedure Act, that is, if a person is dead or so ill as not to be able to travel, their statements are made admissible if an accused person or his counsel had a full opportunity to cross-examine that witness.
As John Stratton SC points out in his Criminal Law Survival Kit published on the website by that name:
"...even if nothing is achieved in cross-examination, the simple fact of the witness having to give an account on oath creates a potential prior inconsistent statement..."
Once the Public Defender advises what witnesses should be requested to attend for cross-examination, the solicitor should contact the solicitor for the Director of Public Prosecutions who has carriage of the matter and request consent to the witnesses' attendance. The magistrate must give a direction for the attendance of the witness by consent. If there is no consent, an application will need to be made. In such an application under s.91(3), a magistrate will only give such a direction if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. In relation to victim witnesses of offences involving violence, s.93 requires a magistrate not to direct a witness' attendance unless there are special reasons why the alleged victim, in the interests of justice, should attend and give oral evidence.
In the advice to solicitors, the Public Defender will indicate the substantial reasons or special reasons why a witness should attend, as well as indicate the area required for cross-examination. Solicitors should seek to list such applications in the Local Court during the District Court sittings when a Public Defender is likely to be present.
Should witnesses be directed to attend to give evidence, a Public Defender (if available) will appear in the Local Court for the purpose of cross-examining those witnesses. The solicitor should again seek to list those committal proceedings during the District Court sittings, if possible.
If the accused is committed for trial, counsel will already be briefed and have in his/her possession the instructions obtained by the solicitor and the prosecution brief that was placed before the Local Court. The solicitor will then need to obtain the transcripts of the committal, as well as any additional evidence the Crown proposed to rely upon at the accused's trial and forward those matters to counsel for incorporation into his/her brief.
If there are any witnesses the accused proposes to call, solicitors must take from those witnesses full proofs of evidence and forward them to counsel. If any conferences are required with the accused or any witnesses, arrangements will need be made between counsel and the solicitor for those conferences to be held. Solicitors are to be advised that there is a guideline issued under the Public Defenders Act by the Senior Public Defender. That guideline prohibits a Public Defender having a conference without the presence of an instructing solicitor.
Should any subpoenas or other material required to be attended to prior to the trial, counsel will provide advice to the solicitor as to what those matters are.
The benefit of counsel being briefed prior to the committal hearing is to ensure that matters that are committed for trial to the District Court can either be filtered out at committal or, alternatively, be negotiated between committal and trial with the Crown on a more informed basis.
Ron Hoenig
Public Defender
23 May 2005
Note: This paper was originally presented by Ron Hoenig at the Law Society CLE Conference for legal practitioners in the southern regions of NSW.
20 Sep 2024