Order 6 of the Criminal Practice Rules 2022 is headed Pre-trial procedure, and Division 1 establishes the pre-trial review.
Rules 1 and 2
In cases where the accused has indicated a plea of not guilty will be entered, the Court will conduct a preliminary hearing called a “pre-trial review”.
(a) if the accused is legally represented, it is desirable but not necessary for the accused to be present in person;
(b) if the accused is self-represented, it is necessary that the accused be present in person unless the accused fails to appear without reasonable excuse.
Rule 3 — Form 24
Prosecuting counsel shall inform the Court and the defence of —
- the likely charge(s) on which the accused is to be indicted — with a draft indictment attached by the Public Prosecutor, unless for special reason it is considered … inappropriate, and without any enforceable obligation that the State will proceed as per the draft indictment;
- the prosecution witnesses required at trial as shown on the committal documents and any notices of further evidence then delivered, and of the availability of such witnesses;
- facts which can be and are admitted pursuant to s 589 of the Code and can be reduced to writing at the trial, and of the witnesses whose attendance will not then be necessary;
- any additional witnesses the prosecution may call and the evidence expected — and if statements are not available for service, a summary of the evidence … supplied in writing;
- the likely length of the State’s case;
- exhibits which are to be tendered, including those that are appropriate to be tendered by consent;
- issues as to the mental or medical condition of the accused or a witness;
- points of law that may arise on trial, including any question as to the admissibility of evidence which then appears on the face of the papers, and any case relied on;
- the names of witnesses from whom statements have been taken by the prosecution but who are not going to be called and, in appropriate cases, disclosure of the content of those statements;
- the order in which the witnesses for the prosecution will be called;
- whether it is necessary for the Court to issue any summons requiring attendance of witnesses;
- any other significant matter which might affect the proper and convenient trial of the case.
The prosecution must name witnesses from whom statements have been taken … but who are not going to be called and, in appropriate cases, disclose the content of those statements.
That is a significant protection for the defence, and it is triggered by the Rule rather than by any request. Check the Form 24 statement for it.
Rule 4 — Form 25
Defence counsel shall inform the Court and the prosecution of, amongst other things —
(a) the likely defences to the charge, being as specific as is practicable in terms of any excusatory defences under the Criminal Code that are likely to be relied on at the trial;
(b) any alibi that the accused proposes to rely on at the trial, in which case the Judge shall give directions for filing and service of a notice of alibi in Form 26;
(c) whether it is likely that the accused will give evidence;
(d) the number and description of defence witnesses;
(e) whether it is likely that admissions would be made pursuant to s 589 (admissions) of the Code.
Order 8 Division 2 deals with alibis separately — definitions in Rule 2 and notice of alibi in Rule 3. Raising an alibi at the pre-trial review triggers the Judge’s directions for the Form 26 notice.
Note also Order 4 Rule 8(3)(o) for fraud and corruption cases, which puts any alibi not disclosed pursuant to these Rules on the directions hearing agenda.
Rule 5
An application may be made orally by any party for an order relating to —
(a) the severance of any count or accused on the draft indictment;
(b) amendment or provision of further and better particulars of any count on the draft indictment;
(c) the time for compliance with any orders of the Court;
(d) any other order considered necessary or appropriate to secure the proper and efficient trial of the accused.
Order 6 Division 2
Rule 7 — an application under s 552 of the Code to be brought to trial may be made orally or in Form 28.
Rule 8 — if the Court accepts the application, it shall make an order, in Form 29, to clarify the status of the proceedings and the rights and obligations of the accused and the State.
Rule 9 — where the circumstances in s 552(3) appear to apply and the accused indicates an intention to apply for bail, the Court may hear an oral bail application or may direct that an application for bail be made in writing in accordance with the Bail Rules, and may make an order in Form 30. Where bail is granted, a bail file shall be opened.
Rule 10 — where s 552(4) appears to apply, the Court shall, after hearing the parties, make an appropriate order in Form 31.
A section 552 application is how an accused presses to be brought to trial, and it connects directly to the guiding principle in Order 1 Rule 2 — the right under Constitution section 37(3) to be afforded a fair hearing, within a reasonable time by an independent and impartial court.
Order 2 Division 8 supports it institutionally: it is headed Delay in commencement of trial, states its purpose, and requires monthly reports to be compiled and reports by the Chief Justice.
Where the delay is such that a trial would be unfair, see also stay for abuse of process.
Sources
- Criminal Practice Rules 2022 — O 1 rr 2, 3; O 2 Div 8; O 4 r 8; O 6 rr 1–10; O 8 Div 2; Forms 24–31
- Criminal Code Act (Chapter 262) — ss 552, 589
- Constitution — s 37(3)
The Bail Rules 2021 are not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.