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The Criminal Procedure Act 2011 (the Act) includes:
The Criminal Procedure Rules 2012 (the Rules) made under the Act, sets out timeframes:
The timeframes set out in the Rules may be extended or shortened by the court or by a Registrar with the agreement of both the prosecutor and the defendant.
Defendants may be ready to enter a plea at their second appearance, for example if there has been initial disclosure under section 12(1) of the Criminal Disclosure Act 2008 (the CDA) and the opportunity to exercise the right to legal representation. The time to second appearance recognises that the defendant (and the defendant’s lawyer, if applicable) needs time to consider initial disclosure:
For the purposes of initial disclosure, the applicable date under section 12(4) of the CDA is 15 working days from the earliest of the service of a summons, the first appearance of the defendant following arrest or in response to the filing of a charging document, or the date that police bail was granted.
The longer timeframe for cases involving category 3 and 4 offences accommodates particular features of these types of proceedings. Cases involving category 4 offences must transfer to the High Court after first appearance and the Crown must assume responsibility as prosecutor. In cases involving category 3 offences, the defendant may wish to consider whether or not to elect jury trial if they intend to enter a not guilty plea.
Following the entry of a not guilty plea (including a deemed not guilty plea when a defendant who is required to plea refuses or fails to do so), proceedings are adjourned for a judge-alone trial (category 1) or for case review (category 2, 3 or 4 offences).
After a not guilty plea is entered, but before the case review hearing, the defendant’s lawyer and the prosecutor must have discussions to progress the case and jointly complete the case management memorandum (CMM).
The time to case review depends on the offence category, whether the defendant has elected a jury trial, and whether the Crown must prosecute the offence prior to case review:
A CMM will be issued to the defendant’s lawyer when the case is adjourned to case review. The defendant’s lawyer must file the jointly completed CMM not later than 5 working days before the date of the case review hearing, including any sentence indication, written submissions that either party wishes to make, or relevant information that the parties wish to bring to the court’s attention.
This ensures the court has the necessary time to process the CMM before the case review hearing. The CMM filing date will be recorded on the CMM when it is issued to the defendant’s lawyer.
While in most cases a case review hearing will be held, the Act does permit departure from the case management provisions. For this reason, the time to trial callover is not connected directly to the case review hearing. Rather, the trial callover must be not later than 40 working days after the proceedings are adjourned for trial callover. The trial callover date will be recorded on the trial callover memoranda (TCMs) when they are issued by the court.
Before the trial callover, the prosecutor must file the formal statements forming the evidence proposed to call at trial, or such part of that evidence as the prosecutor considers is sufficient to justify a trial.
Formal statements must be filed by the prosecutor not later than 25 working days before the trial call-over date, along with a transcript of any video interview that is to be filed. The formal statement filing date will be recorded on the TCMs when they are issued to the defendant’s lawyer and the prosecutor.
A TCM will be issued to the defendant’s lawyer and to the prosecutor when a case is adjourned to trial callover. The prosecutor must file his or her TCM not later than 15 working days before the date of the trial callover. The defendant’s lawyer must then file his or her TCM not later than 5 working days before the date of the trial callover. The TCM filing dates will be recorded on the TCMs when they are issued to the defendant’s lawyer and the prosecutor.
An application by the prosecutor or the defendant for directions about case management under section 58 or 59 of the Act must be made not later than 10 working days after the proceedings are adjourned following the entry of a not guilty plea.
An application for a pre-trial admissibility hearing in Judge-alone cases to confirm the admissibility of evidence must be made not later than at the case review hearing or, if full disclosure has not been made by that time, not later than 10 working days after that full disclosure has been made. If full disclosure has not been made, the prosecutor must advise the defendant and the court of the expected date of full disclosure.
Pre-trial applications, for example, applications for oral evidence orders under section 90 of the Act, admissibility of evidence under section 101, and Judge-alone trials under sections 102 and 103 must be made not later than at the trial callover.
A party responds to an application in writing under rule 2.12 by filing and serving a notice of response not later than 10 working days after the date the application was served.
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