When a person is charged with a major indictable offence, or where the defendant charged with a minor indictable offence has elected to have the matter dealt with in a superior court, and is pleading not guilty, a magistrate conducts a preliminary examination (committal hearing).
In this hearing the prosecutor must persuade the magistrate that there is a strong enough case against the defendant to put the defendant on trial before a jury [s 105(2)(c)(ii) Summary Procedure Act 1921 (SA)].
A committal hearing in these circumstances may take the form of:
- a declaration committal where the prosecution relies solely on declarations (formal written statements) of witnesses as evidence to make out the case against the defendant and no witnesses are called to give evidence in court, or
- an oral committal hearing where the declarations are put into evidence but witnesses required by the defendant also give evidence from the witness box and can be cross-examined by the defendant's lawyer, however this is only with permission of the Court and subject to rules.
- The defendant may or may not call or give evidence.
- The prosecutor can also seek leave of the court to call witnesses to support its' case and can call evidence to rebut the evidence of the defence.
- Oral committal evidence is only allowed if the Court determines that there are special reasons for it.
[See generally s 106 Summary Procedure Act 1921 (SA)].
At least fourteen days before this hearing the prosecution must file in the court and give to the defendant or the defendant's solicitor copies of all declarations and any other relevant documents which the prosecution intend using [Summary Procedure Act 1921 (SA) s 104].
The defendant must then decide whether to ask the court to require any of these witnesses to be called to give evidence from the witness box so that they can be cross-examined by the defence.
There is no automatic 'right' to require witnesses to be called to give evidence. A defendant will first need to satisfy the court that there are special reasons justifying the witnesses being called [Summary Procedure Act 1921 (SA) s 106(2)].
Before the next court hearing, the defence must notify the court and the prosecution (in writing) of the witnesses required for cross-examination and, briefly, the special reasons why [Summary Procedure Act 1921(SA) s 106]. At the preliminary hearing the court will decide whether there are special reasons to require a witness to be called. A defendant should carefully consider what to do and discuss the matter with a lawyer.
If the court decides there are no special reasons and does not allow witnesses to be called for cross-examination, the declarations are handed up to the magistrate, who decides, on the material in the declarations, if there is enough evidence to put the defendant on trial in the District Court or the Supreme Court, whichever is appropriate. This declaration committal (also referred to as a hand up committal) is now the usual way in which a preliminary hearing is conducted in South Australia.
After the prosecution has handed the court the declarations (and any witnesses, including defence witnesses have given their evidence), the magistrate must decide, having regard to all the evidence, if there is evidence from which, if believed by the jury, the person could be convicted (a prima facie case). If there is, the defendant is committed for trial in the District Court or the Supreme Court, whichever is appropriate [see Summary Procedure Act 1921 (SA) s 109].
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