The lead-up to the trial: Pre-trial processes
Usually case reviews will be dealt with by the court registrar, rather than a judge.
For all charges where you could be sent to jail for the offence (Category 2 and above), the court will carry out a “case review” of the charge before the case goes to a trial, to look at whether the charge can be resolved without the need for a trial. Category 1 cases don’t have a case review unless a judge orders one. This process is called “case monitoring’ if there’s a guilty plea.
See “Four offence categories” at the start of this chapter for explanation of each category.
Note: Category 1 cases can also be dealt with without the defendant being present. So it’s important that you go to court if you want to be heard in response to the charge.
Date for the case review
For charges that are to be heard by a judge alone, without a jury, the case review will take place 30 working days after you plead not guilty.
For Category 3 offences (offences carrying a jail term of two years or more), you have the right to choose a jury trial. If you do so, the case review takes place 45 working days after the not guilty plea.
What is a Case Management Memorandum?
Before the case review, the defendant and the prosecutor must jointly file a Case Management Memorandum with the court. This document tells the court all the details that relate to the case and what the issues will be at the trial.
The Case Management Memorandum must be filed at least five working days before the case review date.
There are certain issues that the defence and prosecution should discuss before filing the Memorandum, so that these can be covered in the Memorandum if necessary.
Some of the matters to be considered include:
- whether you would like the judge to tell you what sentence you would receive if you pleaded guilty (a sentence indication)
- whether you would consider pleading guilty to a less serious or different charge
- whether the parties agree on any of the evidence that’s to be given in court, which might mean that a witness does not have to come to court or that the trial will be shorter
- whether you object to any of the evidence the prosecutor wants to present at the trial
- whether the parties agree on how long the trial will take, and on a date for the trial.
What happens at a case review?
A case review may or may not involve a hearing before a judge. The court registrar decides based on what’s laid out in the Case Management Memorandum whether a hearing before a judge is necessary. Usually it won’t be necessary.
Case review by Registrar
The registrar usually deals with the case review on the papers without a hearing. But if there is something in the Memorandum that requires a judge’s attention – for example, if you ask for a sentence indication (what sentence you might get if you plead guilty), there will be a hearing.
If the registrar decides a case review hearing before a judge isn’t necessary, you must appear in front of the registrar on the case review date. The registrar will put off (“adjourn”) the case until the trial date if it’s a judge-alone trial or until the jury trial “callover” if it’s a jury trial. “Callover” is a pre-trial appearance before a judge to deal with process matters and make sure the case is ready to go to trial.
Case Review before a judge
If there is a case review hearing before a judge, the judge will have read the Case Management Memorandum and may assess the strengths and weaknesses of the case and whether there is room for negotiation between you and the prosecutor. For example:
- the prosecutor may agree that the charges are too serious for what you actually did
- you may agree that you have no answer (“no defence”) to the prosecutor’s evidence and plead guilty
- taking into account what you have said, the prosecutor may decide the summary of facts should be changed to more accurately reflect what happened
- the judge may give an indication of what sentence would be imposed if you were to change their plea to guilty.
What happens if I decide to plead guilty?
If you plead guilty at an early stage, the judge is required to give you a reduction in sentence. The closer in time you get to trial, the smaller that reduction will be. The case review will usually be the last opportunity for you to get a reduction in sentence for a plea of guilty, and the judge is likely to tell you this.
If, based on the case review, you decide to change your plea to guilty, the judge may either sentence you at the case review or set a future date for sentencing (see “Sentencing” in this chapter).
Can a complainant attend a case review hearing?
Yes. The person who made the complaint against you (“the complainant”) can attend, but they won’t be able to speak at the case review hearing.