Practice Note No.20


Issue Date:
1 February 2010

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
 

PRACTICE NOTE No. 20
Pursuant to Section 185A of the Industrial Relations Act 1996
 

Criminal Prosecutions - Streaming, Standard Timetable and Directions

1. The purpose of this Practice Note is to facilitate the effective case management of prosecutions brought before the Industrial Court (the Court) by prescribing standard directions and timetables for such matters and to ensure that such matters are dealt with in an orderly and expeditious manner and in accordance with the Court's published Time Standards.

2. This Practice Note shall come into force on 1 February 2010.

Streamed proceedings.

3. Prosecutions brought before the Court will enter one of two case management streams designed to ensure that the variety of offences brought before the Court are dealt with appropriately in accordance with the nature of the particular offence.

4. Upon the filing of an Application for an Order pursuant to section 246 of the Criminal Procedure Act 1986 the Prosecutor shall nominate which prosecution stream is the most suitable for determining the matter. Normally, offences involving the death or serious injury of a person or the risk of death or serious injury to a person under the Occupational Health and Safety Act 2000 should be nominated as Stream 1 offences; other prosecutions should be nominated as Stream 2 offences.


Stream One Procedure.
5. Upon an Order being made by the Registrar or the Court, the Prosecution shall forthwith serve on the Defendant the following documentation:
      (i) a Certified or Sealed Copy of the Order, a copy of the Application for an Order together with any supporting Affidavits
      (ii) a blank Notice of Appearance (in the form annexed to this Practice Note)
      (iii) a copy of this Practice Note
      (iv) an explanatory document advising the defendant of its obligations to file and serve a Notice of Appearance and the consequences of its failure to appear at the First Directions Hearing or otherwise in the proceedings.
      (v) an explanatory document advising the Defendant of the criminal case conferencing process in the Court.
6. The Defendant, or the Defendant's legal representative, is to file with the Industrial Registrar and serve on the Prosecution a Notice of Appearance within seven days of service of the Certified Copy of the Order and associated documentation.

Service of brief of evidence and Prosecutor's Statement of Facts.

7 (i) Where a Notice of Appearance has been filed and served on the Prosecution by the Defendant's legal representative, the Prosecution brief of evidence and Prosecutor's Statement of Facts are to be served on the Defendant's legal representative within 14 days of service of the Notice of Appearance.

      (ii) Service in accordance with sub-paragraph (i) may be effected by leaving it at the relevant legal practitioner's address for service or by sending it to that address by post, document exchange or, to the extent that the documents in the brief make it appropriate to do so, by facsimile or by sending it to the legal practitioner's email address for service by electronic communication.

      (iii) If, by the First Directions Hearing, no Notice of Appearance has been filed and served on the Prosecution or a Notice of Appearance has been filed and served but discloses no legal representative, the Prosecution brief of evidence and Prosecutor's Statement of Facts are to be served on the Defendant no later than seven days after the date of the First Directions Hearing. The Defendant shall provide an address for service of the brief and associated documents at the First Directions Hearing.

First Directions Hearing.

8 (i) A matter is to be listed for its First Directions Hearing within four weeks of the issue of an Order by the Registrar or the Court.

      (ii) At the First Directions Hearing
          a) If the Defendant enters a plea of guilty - the matter will be listed for sentence hearing.
          b) If the Defendant enters a plea of not guilty - the matter will be listed for defended hearing.
          c) If the Defendant enters no plea and is legally represented, the Court's criminal case conferencing procedure is applied. [Note: Criminal Case Conferencing only applies where a Defendant is legally represented and does not apply to prosecutions commenced pursuant to section 32A of the Occupational Health and Safety Act 2000.]
          d) If the Defendant is not represented and enters no plea - the matter will be adjourned for four weeks and the next listing will be treated as a first directions hearing.
          e) where the parties have identified that the nature or complexity of the matter is such that the application of the normal case management procedures will not meet the contingencies of the matter, the parties are to draw this to the attention of the Registrar or the Court. The parties are to provide full details of the particular nature or complexity of the matter including estimated length of hearing if the matter was to proceed as a not guilty plea. In appropriate circumstances the matter will be allocated for direct judicial case management and these standard directions may be varied by the judge as seen fit.
Case Conference Procedure.
9. Criminal case conferencing applies only where a defendant is legally represented.
10. Where the proceedings are referred for criminal case conferencing, the following directions are to be issued:
        i. A criminal case conference is to be set to take place within 6 weeks;

        ii. At or before the criminal case conference, the Defendant is to put in writing to the Prosecution, any representations, requests or proposals relating to the charges, particulars, Prosecutor’s Statement of Facts or other issue related to the proceedings;

        iii. The Prosecution to respond to any written representations or written request of the Defendant at or within 4 weeks after the criminal case conference;

        iv. Second Directions Hearing set 6 weeks after the criminal case conference is held;

        v. Any interlocutory or other application relating to the proceedings is to be made by Notice of Motion and Affidavit and must be filed and served 7 days before the Second Directions Hearing. Motions will be returnable at the Second Directions Hearing.
    11. Criminal case conferences are to be held at a venue suitable to the parties. In the Sydney metropolitan area the Court will, on application of the parties, seek to provide a conference room or the like for the purpose of a case conference being conducted.
      12. The criminal case conference provides the Defendant with the opportunity to:
          a. indicate the plea to be entered;
          b. make representations or requests in relation to the charge, particulars of the charge or Prosecutor’s Statement of Facts.
          c. provide details of any interlocutory or other matter to be raised in the proceedings.

          Case conferences are to be conducted on a "without prejudice" basis, that is, no evidence may be adduced during the proceedings of
              (i) any communication made during the course, or for the purposes of, a criminal case conference
              (ii) any document prepared in connection with a criminal case conference.

      13. The parties have liberty to apply during the criminal case conferencing process.

      Second Directions Hearing
        14. At Second Directions Hearing:
            a. If Defendant enters a plea of guilty - the matter will be listed for sentence hearing.
            b. If plea of not guilty – the matter will be listed for defended hearing.
            c. If any interlocutory or other application has been filed - will be listed for hearing as soon as practicable.
            d. Where no plea is entered and the Defendant or their legal representative satisfies the Registrar or the Court that the interests of justice dictate a further adjournment - the matter will be listed for a Third Directions Hearing before a Judge within four weeks.
        15. At the Second Directions Hearing where a plea is entered the parties should be prepared to provide estimates for the length of any hearing (either interlocutory, sentence or defended) and any special requirements or directions required for such hearing (e.g. service of expert reports, requirement for interpreter).

        16. To facilitate the requirement of Clause 15 where the Defendant is legally represented, the Defendant's legal representative is to complete and sign a copy of the Court Listing Advice in the form as annexed to this Practice Note.

        Third Directions Hearing.

        17.
            a. At the third Directions Hearing, subject to any order made by the Judge to whom the matter is allocated on an application by the defendant, in the absence of a plea being entered, the matter will be referred for allocation for hearing on the basis of a not guilty plea.

            b. No further adjournments will be allowed except in the most exceptional circumstances and where the interests of justice dictate. Any such application should be made by notice of motion supported by evidence on affidavit.
        Plea of Guilty entered.

        18. (i) Once the Court has allocated a hearing date for the plea of guilty, subject to the hearing date set and subject to sub-paragraph (iii) below the following timetable applies:
              (a) any further evidence to be relied upon by the Prosecution together with a Statement of Facts (agreed if possible) is to be filed and served by the Prosecution no later than six weeks before the date appointed for the hearing of the plea.
              (b) evidence to be relied upon by the Defendant is to be filed and served no later than three weeks before the date appointed for hearing of the plea.
              (c) evidence in reply by the Prosecution is to be filed and served no later than one week before the date appointed for hearing of the plea.
            (ii) The above standard directions have been prepared on the basis that specific arrangements or directions have been earlier made in respect of the service of expert evidence between the parties in preparation for the hearing of the plea. In the event that such directions have not been made either the Court or Registrar as appropriate, should be requested by the parties to modify the standard directions to ensure that expert evidence is served in a way that allows each party to obtain instructions on such evidence and, if appropriate, reply to such evidence before the allocated hearing date.

            (iii) Where a party objects to the Judge hearing the plea reading any particular document or class of documents prior to the hearing the Registrar shall be advised in writing of the objection with a copy of the subject letter being sent to the Judge's Associate and the document(s) shall either be returned to the relevant party or placed in the Court file in a sealed envelope.


        Stream Two Procedure.

        19. Upon an Order being made by the Registrar or the Court, the Prosecution shall forthwith serve on the Defendant the following documentation:
            (i) a Certified Copy of the Order, a copy of the Application for an Order together with any supporting Affidavits.
            (ii) a blank Notice of Appearance (in the form annexed to this Practice Note).
            (iii) a copy of this Practice Note.
            (iv) an explanatory document advising the Defendant of its obligations to file and serve a Notice of Appearance and the consequences of its failure to appear at the First Directions Hearing or otherwise in the proceedings.
        First Appearance Date.

        20. A matter is to be listed for a First Appearance Date within 4 weeks of the issue of an Order by the Registrar or the Court.

        21. On the first appearance date a brief order must be made by the Registrar or the Court unless a plea of guilty is entered or the Defendant fails to appear.

        22. Where the Prosecution brief has been served prior to or on the first appearance date the matter will be adjourned for not more than six weeks for reply.

        23. Where the Prosecution brief has not been served the matter will be adjourned for not more than eight weeks (allowing not more than 14 days for service of the brief and not more than six weeks for reply).

        24. The date to which a matter is adjourned will be known as the Reply Date.

        25. A Court Listing Advice in the form annexed to this Practice Note listing the statements contained within the brief is to be served by the Prosecution with the brief.

        26. The period allowed by the Registrar or the Court for reply is to be utilised by the Defendant and/or legal representatives to consider the evidence and the Prosecution witnesses required for cross-examination.

        27. All requests for particulars or representations for withdrawal by the Defendant must be served on the Prosecution no later than 14 days prior to the reply date. Failure to comply with this requirement will not entitle the Defendant to an adjournment on the return date.

        28. Parties are at liberty to restore the matter to the list prior to the Reply Date for a plea of guilty to be entered.

        Service of the Prosecution Brief

        29. Where a Notice of Appearance has been filed and served on the Prosecution by the Defendant's legal representative, the Prosecution brief of evidence is to be served on the Defendant's legal representative in accordance with the instructions for service on the Notice of Appearance filed with the Court within fourteen days.

        30. Where a Defendant is not represented, the Prosecution's brief of evidence is to be served on the Defendant by
            a. handing it to the Defendant, or
            b. by sending it by post or by facsimile to the Defendant's residential address, or
            c. sending it by electronic communication to the Defendant's email address.

        Reply Date

        31. On the Reply Date the Defendant must enter a plea (where not previously entered).

        32. In the event that a plea of not guilty is entered and the Defendant is legally represented, the legal representative of the Defendant is to hand to the Court and to the Prosecutor a completed Court Listing Advice form (refer clause 25).

        33. On the Reply Date the Registrar or the Court must
            a. proceed to allocate a date for hearing of the plea or hear the plea.
            b. where a plea of not guilty is adhered to or entered, allocate a date for hearing.
            c. where no plea is entered and the Defendant or their legal representative satisfies the Registrar or the Court that the interests of justice dictate a further adjournment - the matter will be listed for a further Reply Date before a Judge within four weeks.

        34. At any second Reply Date
            a. subject to any order made by the Judge to whom the matter is allocated on an application by the defendant, in the absence of a plea being entered, the matter will be referred for allocation for hearing on the basis of a not guilty plea.

            b. No further adjournments will be allowed except in the most exceptional circumstances and where the interests of justice dictate. Any such application should be made by notice of motion supported by evidence on affidavit.
        35. Where the Defendant fails to appear on the Reply Date the Court may proceed to hear and determine the matter in the absence of the Defendant or the Registrar is to allocate a date for hearing in the absence of the Defendant.

        Hearing.
        36. The following applies only where the Defendant is legally represented
            a. the Prosecution is required only to call at the hearing those witnesses nominated for cross examination on the Court Listing Advice form. A notation on the Court Listing Advice form by the legal representative of the defendant that a witness is not required to be called for cross examination does not prevent the Prosecution calling that witness in the prosecution case if the prosecutor is of the opinion the witness is required. In these circumstances the Prosecutor should notify the legal representative of the Defendant no later than 7 days prior to the date of the hearing that it will be called the said witness.
            b. The remainder of the brief of evidence may be tendered by the Prosecutor.
            c. the legal representative of the Defendant is to notify the Prosecutor of any changes in the witnesses nominated for cross-examination no later than 14 days prior to the date of hearing.
            d. nothing in this Practice Note operates to make a written statement or any part of a written statement admissible if it is not otherwise admissible.
        General
        Reckoning of Time.
        37. The provisions of Part 1.11 of the Uniform Civil Procedure Rules 2005 apply to criminal proceedings.

        Affidavits.
        38. Subject to any provision of the Criminal Procedure Act 1986, the Industrial Relations Act 1996 or the Act under which the proceedings are brought the following provisions apply in respect of affidavits filed in criminal proceedings:

        38.1 Time for swearing

        An affidavit for use in any proceedings may be sworn before or after the commencement of the proceedings.

        38.2 Form

        (1) An affidavit must be made in the first person.


          (2) The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

          (3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, the person must certify in or below the jurat that:


            (a) the affidavit was read in the person’s presence to the deponent, and

            (b) the deponent seemed to understand the affidavit.



          (4) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with subclause (3) does not appear on the affidavit, the affidavit may not be used unless the tribunal is satisfied that the affidavit was read to the deponent and that the deponent seemed to understand it.


        38.3 Alterations

          (1) Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit, the affidavit may not be used without the leave of the tribunal unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, re-writes in the margin of the affidavit any word or figures written on the erasure and signs or initials them.

          (2) subclause (1) applies to an account verified by affidavit as if the account were part of the affidavit.



        38.4 Annexures and exhibits

          (1) A document to be used in conjunction with an affidavit must, where convenient, be annexed to the affidavit.

          (2) Where annexure is inconvenient, the document may be made an exhibit to the affidavit.

          (3) An exhibit to an affidavit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.



        38.5 Irregularity

          An affidavit may, with the leave of the tribunal, be used notwithstanding any irregularity in its form.


        38.6 Handing up affidavits

          (1) An affidavit, unless required by or under an Act or by an order of a tribunal, may be filed in the Registry or may be handed up in the course of proceedings.

          (2) An affidavit which has been served must, before it is filed or handed up, bear a note by the person who served the same, indicating the time, place and manner of service, unless the tribunal otherwise directs.



        38.7 Service

          A party intending to use an affidavit must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.


        38.8 Scandal etc

          Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, a tribunal may order that:

          (a) the matter be struck out, or

          (b) the affidavit be taken off the file.



        38.9 Cross-examination

          (1) A party may require the attendance for cross-examination of a person making an affidavit.

          (2) A requirement under subclause (1) must be made to the party serving or proposing to use the affidavit.

          (3) Where the attendance of a person is required under subclause (1), the affidavit may not be used unless the person attends or is dead or the tribunal grants leave to use it.

          (4) Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.



        Motions.
        39. The provisions of Part 18 of the Uniform Civil Procedure Rules 2005 apply to motions filed in criminal proceedings.

        Summonses.
        40. The provisions of Part 33 of the Uniform Civil Procedure Rules2005 apply to
            • summons to give evidence under s 165(3)(b) of the Act and
            • summons for production under s 165(3)(c)
            filed in criminal proceedings.
        Boland J, President
        1 February 2010

        Annexure of Forms in Practice Note No.20