Charge Certification and Case Conferencing (NSW)

In New South Wales, committal hearings were abolished in 2018. Instead, there is now a process of charge certification and case conferencing which is used to determine whether an indictable criminal matter proceeds to a higher court. This page outlines the process of charge certification and case conferencing in New South Wales.

Charge certification

Charge certification is dealt with in Division 4 of the Criminal Procedure Act 1986.

The prosecutor in an indictable matter must ensure that a brief of evidence is served on the defence. This must include all the evidence that the prosecution intend to rely on including witness statements, police interviews, medical records and CCTV footage.  They must then file a charge certificate and serve it on the defence before the date set by the court. The charge certificate must state:

• the charges specified for the committal proceeding
• the charges to be proceeded with against the accused
• the details of the offences
• any back up charges
• which offences are not being proceeded with (if applicable).

The prosecution must certify that there is sufficient evidence available to establish each element of each offence. They must certify that any applicable duties of disclosure have been complied with.

The date for filing the charge certificate must generally be within six months of the first date the matter is mentioned in court.   

Case conferencing

The processes for case conferencing are set out in Division 5 of the Criminal Procedure Act 1986. A case conference must be held in a matter that is to be dealt with on indictment, except where the accused is pleading guilty and in unrepresented.

The case conference is held to determine whether there are any charges to which the accused is willing to plead guilty. It may also be held to:

• ensure the provision of further material and information to assist the accused in deciding whether to plead guilty or not guilty
• facilitate the resolution of other issues relating to the proceeding such as identifying key issued and disputed facts.

The case conference is held after the charge certificate has been filed.

A case conference is held between the prosecutor and the defence lawyer. It may be held in person of over the phone. The accused’s legal representative must take instruction from the accused as to the matters to be discussed at the case conference.

Before the case conference is concluded, the accused’s lawyer must explain to the accused the applicable penalties for the offences, the sentencing discount that is applied for a guilty plea, and the likely impact on the penalty if the accused were to plead guilty.

The case conference must be held before the deadline set by the court. On the date of the conference, a case conference certificate must be completed and filed. The certificate must include information such as any offers to plead guilty to offences made by the defence and any offers made by the prosecution to accept a plea to offences.  

Failure to comply with procedures

Under section 68 of the Criminal Procedure Act 1986, if the prosecution does not file a charge certificate by the deadline set by the court, the magistrate must discharge the accused person or adjourn the matter to a future date.

Under section 76 of the Criminal Procedure Act 1986, if the case conference certificate is not filed due to a failure by the prosecution to participate in case conferencing, the magistrate may dismiss the matter or adjourn the matter to a later date. If the case conference certificate is not filed due to a failure by the defence to participate in case conferencing, the magistrate may commit the matter for trial or sentence or adjourn the matter to a later date.

The magistrate must decide which course to take based on what is in the interests of justice.

Why were committal hearings abolished?

The process for committing charges to higher courts in New South Wales was changed mainly to avoid delays. The new system is intended to ensure that indictable matters are dealt with expediently.

Under the old system, a person facing an indictable offence had the right to a committal hearing, during which the prosecution case was tested by the defence. If the magistrate was not satisfied that the evidence could support a finding of guilty, the matter would be dismissed. If the case was sufficiently strong, the matter would be committed for a trial or a plea in a higher court.  

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