committal-hearing-court1 | The Defenders: Criminal Defence Lawyers Sydney & Parramatta



A committal hearing is a process in which a Magistrate determines whether there is enough evidence from the prosecution for your case to go to trial. According to the Criminal Procedure Act 1986 (NSW) (the Act), if the evidence available cannot satisfy a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed and indictable offence, the magistrate must discharge the accused person. However, if the magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial.

What Happens at a Committal Hearing?

At the hearing, a solicitor representing the Department of Public Prosecutions (DPP) appears on behalf of the police. They will summon the witnesses who are supposed to provide evidence. The solicitor will question the witness and, thereafter, the criminal defence lawyer will cross-examine the witness. After the witnesses, have provided evidence and have been cross-examined, the solicitor for the DPP’s side will sum up the police case.

The next step in any committal hearing is where the defendant is supposed to give evidence and answer the charges against them. The magistrate will start by warning the defendant that it is not compulsory for them to give evidence and that anything they say will be used against them in their trial.

In most committal hearings, the defendant usually does not call witnesses or give any evidence. However, if the defendant calls witnesses or gives evidence, the DPP will cross-examine the witnesses and the defendant.

After all evidence is given during a committal hearing, the Magistrate then has to decide whether a reasonable jury, properly instructed, would convict the accused person of an indictable offence.  If the Magistrate decides this in the affirmative, then the accused person will be committed for Trial. If the Magistrate decides this in the negative, then the accused person will be discharged.

Types of Committal Hearings

A Waiver of Committal
This is where the defendant chooses not to have a committal hearing. If the prosecution consents to a waiver of committal, the process of committal will be disregarded, and the case will go straight to trial. This procedure saves the time and expense of a committal process.

Paper committals
In this hearing, the prosecution’s Brief of Evidence is presented to the Magistrate who decides if it is sufficient for the case to proceed to a higher court and on to a trial. In most cases, Magistrates only give a short glance at the evidence before ordering that the case move to a higher court. Sometimes a defence lawyer will concede that the matter should go to trial.  There are other times where a defence lawyer may argue that the accused person should be discharged because the Brief of Evidence is weak.

A Defended Committal Hearing
Defended committal hearings are rare, because they are expensive and quite lengthy. Witnesses are not automatically required to attend a committal hearing. Therefore, the defendant must provide convincing reasons. The defendant should make an application to require certain witnesses to attend their committal hearing under Section 91 of the Act.

The prosecution may agree to bring certain witnesses and agree on the type of questions that the defence is supposed to ask them. However, if the defence and prosecution fail to agree, the defence will prepare a written submission stating why certain witnesses must attend the hearing. This application is called a ‘section 91 application’ and is heard the date before the committal hearing is set to be heard.

A section 93 application is the same as the 91 application only that the witness in this case is a victim of violence. The following are classified as violence victims:

  • Victims of sexual offenses;
  • Victims of attempted murder;
  • Victims of wounding with intent to cause grievous body harm;
  • Victims of abduction; and
  • Victims of robbery

Section 93 sets out the conditions under which victims of violence may be required to attend committal hearings. The courts are usually reluctant to force victims of violence to attend committal hearings.  This is because victims should only go through the ordeal of testifying once during the jury trial. Therefore, the defence must have special reasons that are in the best interest of justice for a victim to be present in a committal hearing.

Advantages of Committal Hearings

The main advantages of committal hearings are as follows:

  • Charges may be dismissed: The defence may discredit the evidence of the prosecution so that the court finds that the case is weak and dismisses it.
  • A ‘no bill’ application: Even though the magistrate commits the defendant for a trial, the DPP may find that the case is weak depending on how it performed during the committal hearing. If the defendant makes a no bill application to the DPP to have them withdraw the case, it is likely that the DPP will withdraw the charges.
  • Uncovering of evidence: In committal hearings, evidence that was not apparent may come to light and this could either help or hurt the defendant’s case. If such evidence is discovered before trial, it gives your lawyer a chance to plan their case and disprove the prosecution’s evidence.
  • Highlights the strengths and weaknesses of the prosecution

Disadvantages of Committal Hearings
One might decide not to have a committal hearing for the following reasons:

  • It reveals their game plan to the prosecution- the defence must disclose to the police what questions you want to ask in a cross examination and why;
  • It acts as a rehearsal for prosecution witnesses and gives them a chance to be well prepared for the trial;
  • It is expensive- court appearances and written submissions; and
  • It is time consuming- depending on the length of the legal argument and committal hearing, having such a hearing could add an extra 6 months to your case.

If the magistrate discharges the defendant during the defended committal hearing, the prosecution can revive the case through an ex-officio indictment. Many lawyers argue that there is no point to a defended committal if the prosecution can override the decision of the magistrate.

When a defendant is discharged at the committal stage, it means the case is finalised and the defendant can proceed with their life. Defended committals are beneficial in particular cases such as identification cases. Cases based on identification of the defendant by one witness can be withdrawn through a thorough cross-examination of the witness at a committal hearing.

A defended committal is also necessary to clarify certain issues even without the need to pursue a discharge of the case. Asking specific questions to witnesses can clear-up pertinent issues or direct the defence on how to conduct investigations or prepare for trial.

In some cases, where a defendant is discharged, the defence can make a claim for costs. According to the Act, sections 213 and 214, the defence can be awarded costs under certain circumstances like when the prosecution acts without reasonable cause, in bad faith, or conducts an improper investigation. The Magistrate may also award costs in the event that the police withdraw charges against the defendant before a committal or if the defendant is tried for a different case than the one indicated in the court attendance notice.

Committal hearings are important in determining whether the defendant will be discharged or whether their case will be dropped.  In cases where a matter is committed to the District Court, the committal hearing gives the defence a chance to discover the evidence that the prosecution has against them and any other details and prepare a defence. Depending on different circumstances, a committal hearing may work for or against an accused in a criminal case.