Australia: Committal mentions – A detailed look at procedure and preparation

If you have been charged with a more serious criminal offence, the process is different to the less serious matters in the summary stream that stay in the Magistrates' Court. A serious criminal matter will be assigned to the indictable stream in the Magistrates' Court and ultimately, indictable matters are destined for a higher court; either the County Court or the Supreme Court. If you are pleading not guilty, you are working towards a trial before a jury. It is helpful to keep this bigger picture in mind when trying to understand the purpose of different administrative hearings along the way.

The first step in the indictable stream process is a filing hearing. Generally, six weeks after the filing hearing, you will receive a copy of the brief of evidence. The next step in the process is a committal mention or committal case conference. They are essentially the same thing save for a few key differences.

In a committal case conference the Magistrate is more involved in discussions and is trying to resolve the matter. Usually, committal case conferences involve matters where there is a victim or where a weapon is alleged to have been used. For this reason, the Magistrate often weighs in on how the matter should proceed.

For the purpose of this article, I am going to talk about committal mentions.

The committal mention is an administrative hearing. Your lawyer is informing the court which path you are taking. You are either electing to plead guilty, in which case your matter will be booked in for a plea in the appropriate court, or you are electing to contest some or all of the allegations at a preliminary hearing called the contested committal hearing.

With that in mind, following is what happens in the lead up to and during a committal mention and how you can prepare.

The lead up - The Brief of Evidence; Negotiations

Prior to the committal mention you will receive a copy of your brief of evidence. It will either be delivered to you or your lawyer, depending on what was ordered by the court at the filing hearing. Most, if not all clients are extremely anxious about receiving their brief of evidence. This is normal. The brief of evidence contains the very reason you have been charged and are going to court. I encourage clients to read the brief once then put it down and walk away. The first reading can raise a lot of emotions and it is important to step back and process those emotions. When you are ready, read the brief again and then read it again and keep reading it until you know it back to front. With each reading you will gain more clarity and focus. When you are ready, start taking notes. Write "legal professional privilege" at the top of each page so that your notes cannot be obtained by the prosecution. Your notes will form part of your instructions to your lawyer.

The next step is to meet with your lawyer. Sometimes the way forward is clear and you will instruct your lawyer that you accept what is alleged in the brief of evidence and that you want to plead guilty. The alternative is a sliding scale of how much of the brief you agree with and how much you disagree with. You may disagree with everything that is alleged and instruct your lawyer that you are pleading not guilty and will be taking the matter to trial. Or, you might fall somewhere in the middle and accept some allegations but not others.

Your lawyer will discuss with you whether the charges are legally made out on the alleged facts. Overall, your lawyer will give you advice on the brief and in the context of your instructions, advise you whether they think you should plead guilty or not guilty and why. With that advice in mind, the decision is yours.

Your lawyer will make contact with the Office of Public Prosecutions to discuss the matter. The solicitor for the OPP may be in a position to make an offer to resolve the matter - a bundle of charges they would accept if you pleaded guilty. Sometimes it can be helpful to obtain their "bottom line" or "stage-appropriate offer". With a bit of back and forth, an agreeable resolution may be reached. Alternatively, if the decision is to proceed to a contested committal hearing, the negotiations will be in relation to witnesses sought for that hearing.

If you are electing to go to a contested committal hearing, your lawyer must prepare an application to cross-examine witnesses. The aim of the contested committal hearing is to test the strength of the evidence and whether the charges should be going before a jury to decide whether you are guilty or not guilty. Witnesses will be called and asked questions primarily by defence. Whether these witnesses are necessary is determined at the committal mention. Initially, this will be negotiated between defence and the prosecution. Your lawyer will prepare the written application outlining the basis for requesting each witness. The application will be sent to the prosecution approximately two weeks before the committal mention. The prosecution will indicate whether they agree or disagree with the application for witnesses and then file the paperwork with the Magistrates' Court one week prior to the committal mention.

If you a pleading guilty, your lawyer will need to file the appropriate paperwork with the court indicating how the matter has resolved and the charges to which you intend to plead guilty.

During

On the day of your committal mention, you will attend court with your lawyer. The hearing is conducted with many other matters in the one court room.

If you have decided to plead guilty, your lawyer will discuss with you that the Magistrate will give you a caution and ask you whether you intend to plead guilty. You will need to respond appropriately for the court record. A date will be set for your plea hearing in the higher court.

If you are seeking to go to a contested committal hearing, your lawyer will speak on your behalf. The Magistrate will have read the brief and will be familiar with your charges and the witnesses requested. Your lawyer and the prosecution will identify the legal and factual issues and why the matter has not been able to resolve. The Magistrate will settle any disagreements between prosecution and defence regarding witnesses and will ultimately make an order allowing cross-examination of particular witnesses at a contested committal.

There may be other orders made for the provision of outstanding evidence or for the return of subpoenas and the continuation of bail.

If there are co-accuseds in your matter, they will all be dealt with at the same time.

The Magistrate will assign a date for the contested committal. This is usually around 3-6 months after the committal mention.

The next step is to prepare for the contested committal or for your plea hearing. Discuss with your lawyer what you can do to assist in those preparations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.