Criminal Procedure Regulation 2017

This Regulation is the Criminal Procedure Regulation 2017.

This Regulation commences on 1 September 2017 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Criminal Procedure Regulation 2010, which is repealed on 1 September 2017 by section 10 (2) of the Subordinate Legislation Act 1989.

In this Regulation—

Criminal Listing Director has the same meaning that it has in Part 3 of Chapter 3 of the Act.

Department means the Department of Communities and Justice.

fee unit—see Schedule 2, Part 3, clause 2(1).

Secretary means the Secretary of the Department.

the Act means the Criminal Procedure Act 1986.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.

Notes included in this Regulation (except in Schedule 1) do not form part of this Regulation.

The Criminal Listing Director may direct any of the following persons to give to the Director any information to assist the Director in making arrangements for the listing of criminal proceedings that the Director reasonably requires—

a prosecutor,

an accused person or appellant,

an Australian legal practitioner acting for an accused person or appellant,

a registrar.

A person to whom a direction is given must comply with the direction without delay.

The Criminal Listing Director must not give to a prosecutor any information furnished to the Director by an accused person or appellant (or by the Australian legal practitioner of an accused person or appellant) in response to a direction under this clause except with the consent of the accused person, appellant or Australian legal practitioner.

The Criminal Listing Director must not give to an accused person or appellant (or to any person acting in the interest of an accused person or appellant) any information furnished to the Director by a prosecutor in response to a direction under this clause except with the consent of the prosecutor.

An Australian legal practitioner—

who acts for an accused person or appellant in any criminal proceedings, and

who has not filed a notice of appearance in the proceedings in the Local Court that led to those criminal proceedings,

must file a notice of appearance, in the court in which the criminal proceedings are to be heard, as soon as practicable after accepting instructions to so act.

A notice of appearance must be in the form of a document signed by or on behalf of the Australian legal practitioner filing it containing—

the full name of the accused person or appellant for whom the Australian legal practitioner acts, and

the full name, address and telephone number of the Australian legal practitioner.

An Australian legal practitioner who ceases to act for an accused person or appellant in any criminal proceedings must file a notice of ceasing to act, in the court in which the proceedings are to be heard, as soon as practicable after ceasing to so act.

Subclause (3) does not apply if a notice of appearance for the accused person or appellant has already been filed by another Australian legal practitioner.

As soon as practicable after a notice under this clause is filed, the registrar with whom the notice is filed must give a copy of the notice to the Director of Public Prosecutions and to the Criminal Listing Director.

The prosecutor must notify the Criminal Listing Director and the relevant registrar of the Local Court—

if a written transcript of the proceedings in the Local Court that led to the committal for trial of an accused person is not received by the prosecutor within the prescribed time after the accused person was committed for trial, or

if a written transcript of the proceedings in the Local Court that led to an appeal is not received by the prosecutor within the prescribed time after the appellant lodged notice of the appeal under Part 3 of the Crimes (Appeal and Review) Act 2001.

For the purposes of this clause, the prescribed time is—

2 weeks, in the case of an accused person under 21 years of age who is in custody for the offence the subject of the proceedings, or

4 weeks, in any other case.

The Criminal Listing Director must take information received under this clause into account in fixing any date for the hearing or mention of the matter before the Supreme Court or the District Court.

The prosecutor must, as soon as practicable after determining that criminal proceedings are ready to proceed on the part of the Crown, give the Criminal Listing Director a notice of readiness for the proceedings.

The notice must be in the form approved for the time being by the Criminal Listing Director and must be accompanied by a draft of the indictment proposed to be presented in the proceedings.

The Criminal Listing Director must, as soon as practicable after receiving the notice—

give a copy of the notice, and of the draft indictment that accompanies the notice, to the registrar of the relevant court, and

give a copy of the draft indictment to each accused person or the accused person’s Australian legal practitioner.

The prosecutor must, as soon as practicable after determining that the indictment to be presented in any criminal proceedings is to depart in any material particular from the draft indictment that accompanied the notice of readiness for the proceedings, give the Criminal Listing Director a draft of the indictment then proposed to be presented in the proceedings.

The later draft must contain a notice, in the form approved for the time being by the Criminal Listing Director, indicating the nature and extent of the departures from the earlier draft.

The Criminal Listing Director must, as soon as practicable after receiving a draft indictment under subclause (4), give a copy of the draft indictment to the registrar and to each accused person or the accused person’s Australian legal practitioner.

This clause applies to—

any application to the Supreme Court or District Court for an order staying or quashing an indictment, and

any demurrer to an indictment.

Unless the court otherwise orders, an application or demurrer to which this clause applies must not be listed for hearing unless it has been filed within the prescribed time after a copy of the draft indictment was given to the accused person or the accused person’s Australian legal practitioner under clause 7 (3) or (6).

For the purposes of this clause, the prescribed time is—

1 month, in the case of an accused person who is in custody for the offence to which the indictment relates, or

3 months, in any other case.

The Criminal Listing Director must, as soon as practicable after fixing a date for the hearing or mention of any criminal proceedings, give notice of the listing to the registrar of the relevant court.

The registrar must, as soon as practicable after receiving notice of the listing, cause written notice of the listing to be served, in accordance with the rules of court, on the prosecutor and each accused person or appellant in the proceedings.

For the purposes of section 59 (3) of the Act, the oral explanation of the committal process is to be in or to the effect of the following (as applicable to the accused person)—

Charge certificate

The prosecutor has given you or your lawyer a charge certificate. The charge certificate shows all the offences that the prosecutor intends to proceed with if your case goes to trial in the District Court/Supreme Court [specify correct court].

Case conference (if accused has legal representation)

[Include only if the accused person is represented by a legal practitioner]

Your case will now be adjourned so that your lawyer and the prosecutor can discuss your case at a case conference. The case conference is to help you decide whether to plead guilty or not guilty to the charges against you and to discuss any offers that may be made.

You must be available to give your lawyer instructions during the case conference and your lawyer will arrange this.

After the case conference, a certificate will be prepared by the prosecutor and your lawyer as a record of the conference. What is in the case conference certificate is confidential.

After the case conference you will come back before a Magistrate.

What happens next (if accused has no legal representation)

[Include only if the accused person is not represented by a legal practitioner]

Your case will now be adjourned so that you can decide if you want to plead guilty or not guilty to the offences on the charge certificate. If you wish to contact the prosecutor about the offences listed in the charge certificate, you can do so in writing.

You may wish to get legal representation or legal advice about your case while your case is adjourned. This may be available from Legal Aid NSW.

After the adjournment you will come back before a Magistrate.

Committal for trial or sentence

The Magistrate will ask you whether you plead guilty or not guilty to each offence proceeding.

If you plead guilty, the Magistrate will send your case to the District Court/Supreme Court [specify correct court] to decide your sentence. If you plead not guilty, the Magistrate will send your case to the District Court/Supreme Court [specify correct court] for trial.

Statutory sentencing discount for guilty pleas

[Include if the accused person is an offender to whom the discount scheme under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies]

If you plead guilty to an indictable offence, you may get a discount on your sentence. The amount of the discount depends on when you plead guilty and you should seek legal advice about it.

You will be given some written information with more details about the committal process and the sentencing discounts that may be available.

For the purposes of section 59 (3) of the Act, the written explanation of the committal process is to be in or to the effect of the following (as applicable to the accused person)—

Purpose of committal proceedings

This explanation is being given to you because you are facing criminal charges at a committal proceeding. The purposes of the committal proceeding are—

for the prosecutor to decide which criminal charges against you are proceeding, and

for you to decide whether to plead guilty or not guilty to those offences.

At the end of the committal proceeding your case will be sent to the District Court or Supreme Court for trial if you plead not guilty or to decide your sentence if you plead guilty.

Charge certificate

The prosecutor has given you or your lawyer a charge certificate. The charge certificate shows all the offences the prosecutor intends to proceed with if your case goes to trial in the District Court or Supreme Court.

Case conference (if accused has legal representation)

Your case will be adjourned so that your lawyer and the prosecutor can discuss your case at a case conference. Your lawyer will arrange the case conference. The case conference is to help you decide whether to plead guilty or not guilty to the charges against you and to discuss any offers that may be made. At the case conference other issues that relate to your case can also be discussed.

You must be available to give your lawyer instructions during the case conference and your lawyer will arrange this.

If the prosecutor and your lawyer agree, you may be present at the conference.

After the case conference, a case conference certificate will be prepared and signed by the prosecutor and your lawyer. The certificate will show any offers made by you to plead guilty to an offence and whether the offers were accepted. The certificate will also show any offers made by the prosecutor to accept a guilty plea to another offence. It will also show any agreed facts (if a guilty plea offer is accepted).

Your lawyer must explain the statutory sentencing scheme for guilty pleas to you if it applies to your case. You may also be asked to sign the certificate.

What is in the case conference certificate is confidential. It is an offence to publish any information in the certificate.

However, if you are found guilty of an offence the court that decides your sentence will be given the case conference certificate. What is said in the certificate can affect whether you get a sentence discount. The court may use your certificate when deciding your sentence. You should ask your lawyer if you have any questions about this.

After the case conference you will come back before a Magistrate.

What happens next (if accused has no legal representation)

Your case will now be adjourned so that you can seek legal advice and decide if you want to plead guilty or not guilty to the offences on the charge certificate. If you wish to contact the prosecutor about the offences listed in the charge certificate, you can do so in writing.

You may wish to get legal representation or legal advice about your case while your case is adjourned. This may be available from Legal Aid NSW.

After the adjournment you will come back before a Magistrate.

Examination of prosecution witnesses

At any time after you or your lawyer is given the charge certificate, you can ask a Magistrate to direct that one or more of the prosecution witnesses come to court to give evidence in the committal proceedings. The Magistrate will apply certain tests to determine whether to grant the request. If the Magistrate refuses, the Magistrate will give reasons for the refusal.

The Magistrate must give the direction if the prosecutor agrees to your request. However, if the witness is the alleged victim of an offence involving violence, the Magistrate may give the direction only if the Magistrate believes there are special reasons why, in the interests of justice, the witness should attend.

Some alleged victims of child sexual offences or other sexual offences cannot be asked to come to court to give evidence.

Committal for trial or sentence

A Magistrate will ask you whether you plead guilty or not guilty to each offence on the charge certificate. You can also plead guilty at any other time.

If you plead guilty, the Magistrate will send your case to the District Court or Supreme Court to decide your sentence. This is called committal for sentence.

If you plead not guilty, the Magistrate will send your case to the District Court or Supreme Court for trial. This is called committal for trial.

Statutory sentencing discount for guilty pleas (if the discount scheme under Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies)

If you plead guilty to an indictable offence, you may get a discount on your sentence. The amount of discount depends on when you plead guilty.

If you plead guilty before the end of the committal proceedings in the Local Court, that discount may be 25%.

If you plead guilty after you are committed for trial and at least 14 days before the date your matter is first listed for trial, that discount may be 10%. This includes if you plead guilty in court or give the prosecutor a written offer to plead guilty.

If you plead guilty after 14 days before the date your matter is first listed for trial, that discount may be 5%.

The discount scheme does not apply to Commonwealth offences and serious children’s indictable offences, and you should ask your lawyer for advice or get legal advice about this.

For the purposes of section 65 (d) of the Act, the following persons may exercise the functions of a prosecutor under Divisions 4 and 5 of Part 2 of Chapter 3 of the Act—

a person referred to in section 65 (b) of the Act, in the case of a committal proceeding for a State offence,

a person appointed by the Commonwealth Director of Public Prosecutions to exercise any of the Director’s functions under Divisions 4 and 5 of Part 2 of Chapter 3 of the Act,

a legal representative of a person referred to in paragraph (a) or (b),

a person who—

is the prosecutor in the committal proceedings for an indictable offence, and

would be prosecuting the offence in the name of the Attorney General if the offence is committed for trial.