Criminal Procedure Act 1986 No 209
Current version for 1 July 2020 to date (accessed 15 August 2020 at 12:34)
Chapter 3 Part 2 Division 5
Division 5 Case conferences
69   Exceptions to requirements for case conference procedures
This Division does not apply to an accused person in committal proceedings if the accused person—
(a)  is not, or ceases to be, represented by an Australian legal practitioner, or
(b)  pleads guilty to each offence that is being proceeded with and the pleas are accepted by the Magistrate before a case conference is held, or
(c)  is committed for trial under Division 7.
70   Case conferences to be held
(1)  A case conference is to be held in accordance with this Division.
(2)  The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty.
(3)  A case conference may also be used to achieve the following objectives—
(a)  to facilitate the provision of additional material or other information which may be reasonably necessary to enable the accused person to determine whether or not to plead guilty to 1 or more offences,
(b)  to facilitate the resolution of other issues relating to the proceedings against the accused person, including identifying key issues for the trial of the accused person and any agreed or disputed facts.
(4)  The case conference is to be held after the filing of the charge certificate by the prosecutor.
(5)  More than one case conference may be held.
(6)  A further case conference may be, but is not required to be, held after the filing of an amended charge certificate by the prosecutor.
71   Case conference procedures
(1)  A case conference is to be held between the prosecutor and the accused person’s legal representative in the committal proceedings.
(2)  The initial case conference for the purposes of this Division must be held in person or by audio visual link. Any subsequent case conference may also be held by telephone.
(3)  The Magistrate may order that an initial case conference be held by telephone if the Magistrate is satisfied that there are exceptional circumstances that make it impracticable to hold the conference in person or by audio visual link.
(4)  The regulations may make provision for or with respect to case conferences, including the attendance of the accused person at a case conference.
(5)  In this section—
audio visual link means facilities (including closed-circuit television or other electronic means of communication) that enable audio and visual communication between persons at different places.
72   Obligations of legal representative of accused
(1)  The accused person’s legal representative is to seek to obtain the accused person’s instructions concerning the matters to be dealt with in the case conference before participating in the case conference.
(2)  The accused person’s legal representative must explain the following matters to the accused person before the case conference certificate is completed—
(a)  the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence,
(b)  the penalties applicable to the offences certified in the charge certificate and to any other offences the subject of offers made by the accused or the prosecutor in the committal proceedings,
(c)  the effect on the applicable penalty if the accused person were to plead guilty to any offence at different stages of proceedings for the offence.
(3)  Subsection (2) applies only in respect of an offence to which Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies.
73   Joint accused
(1)  If the accused person has been charged jointly with any other person with the offence concerned, a separate case conference is to be held for each of the co-accused. However, a joint case conference may be held for 2 or more co-accused with the consent of the prosecutor and each of the co-accused.
(2)  A joint case conference may be held only if a charge certificate has been filed for each of the co-accused.
74   Case conference certificate must be completed and filed
(1)  The Magistrate is to make an order setting the day on or before which the case conference certificate is to be filed.
(2)  If more than 1 case conference is held, the case conference certificate is to be filed after all the case conferences are completed.
(3)  The prosecutor and the legal representative of the accused person must ensure that a case conference certificate that complies with this Division is completed and signed on or before the day set by the Magistrate for filing the certificate.
(4)  The prosecutor must ensure that the case conference certificate is filed on or before the day set by the Magistrate.
(5)  A prosecutor or legal representative of an accused person is not required to comply with this section if all the offences to which the proceedings relate—
(a)  are to be dealt with summarily, or
(b)  are, for any other reason, not proceeding for committal by the Magistrate of the accused person for trial or sentence.
75   Contents of case conference certificate
(1)  The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—
(a)  the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166,
(b)  any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,
(c)  any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,
(d)  whether the accused person or prosecution has accepted or rejected any such offers,
(e)  the offence or offences for which the prosecution will seek committal for trial or sentence,
(f)  any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person,
(g)  if an offer made to or by the accused person to plead guilty to an offence has been accepted—details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute,
(h)  any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999,
(i)  whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged,
(j)  any other matters prescribed by the regulations for the purposes of this section.
(2)  A case conference certificate must also contain—
(a)  a declaration by the legal representative of the accused person that the legal representative has explained to the accused person the matters specified in section 72 (2), and
(b)  if the accused person does not intend to plead guilty to an offence, a declaration by the accused person that the legal representative has explained to the accused person the matters specified in section 72 (2).
(3)  A failure by an accused person to make a declaration under this section does not affect the validity of anything done or omitted to be done by any other person in or for the purposes of the committal proceedings.
(4)  A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.
76   Failure to complete case conference obligations
(1)  This section applies where the Magistrate is satisfied that a case conference certificate has not been filed by the day set by the Magistrate.
(2)  If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the prosecutor to participate in a case conference or to complete or file a case conference certificate, the Magistrate may—
(a)  discharge the accused person as to any offence the subject of the committal proceedings, or
(b)  adjourn the committal proceedings to a specified time and place.
(3)  If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the legal representative of the accused person to participate in a case conference or complete a case conference certificate, the Magistrate may—
(a)  commit the accused person for trial or sentence as if a case conference were not required to be held, or
(b)  adjourn the committal proceedings to a specified time and place.
(4)  In determining whether to take action under this section, the Magistrate is to consider the interests of justice.
(5)  This section does not apply if the case conference certificate has not been filed in the circumstances set out in section 74(5).
77   Further offers
(1)  This section applies to an offer (a plea offer) if—
(a)  the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and
(b)  the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and
(c)  the offer is made in writing and served on the other party, and
(d)  the offer is filed in the registry of the Local Court.
(2)  A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.
(3)  A plea offer is to be annexed to the case conference certificate in the committal proceedings.
78   Case conference certificate and other evidence not admissible in other proceedings
(1)  Case conference material is not admissible in any proceedings before a court, tribunal or body.
(2)  However, a case conference certificate is not inadmissible in the following proceedings—
(a)  in relevant sentencing proceedings in accordance with Part 3 of the Crimes (Sentencing Procedure) Act 1999,
(b)  in relevant sentencing proceedings for an offence under Commonwealth law,
(c)  in proceedings for an appeal against a sentence under the Criminal Appeal Act 1912,
(d)  in proceedings for an appeal under the Crimes (Appeal and Review) Act 2001 on a question of law arising from an order made by a Magistrate in committal proceedings or an appeal under section 5 or Division 2 or 3 of Part 7 of that Act,
(e)  in proceedings after committal for sentence relating to an application by the accused person to reverse the person’s plea to not guilty,
(f)  in proceedings brought by a designated local regulatory authority against a lawyer under section 300 of the Legal Profession Uniform Law (NSW).
(3)  Any part of a case conference certificate cannot be required to be produced under a subpoena or request issued in any proceedings before any court, tribunal or body (other than in proceedings referred to in subsection (2)).
(4)  A sentencing court or a court determining an appeal against a sentence must refuse to admit evidence of any case conference certificate if any provisions of this Part with respect to the holding of the conference or the preparation of the certificate have not been complied with, unless it is satisfied that it is in the interests of justice to admit the evidence.
(5)  In this section—
case conference material means—
(a)  a case conference certificate, or
(b)  evidence of anything said between the parties, or of any admission made, during a case conference, or
(c)  evidence of anything said between the parties, or of any admission made, during negotiations after a case conference concerning a plea to be made by, or offers made to or by, an accused person.
79   Confidentiality of case conference certificate matters
The matters that are specified in a case conference certificate are to be treated as confidential.
Note.
 Matters in a plea offer are taken to be part of a case conference certificate (see section 77).
80   Prohibition on publication of case conference material
(1)  A person must not publish, or permit a person to publish, any case conference material.
Maximum penalty—
(a)  in the case of an individual—20 penalty units, or
(b)  in the case of a body corporate—100 penalty units.
(2)  In this section—
publish means disseminate or provide public access to one or more persons by means of the internet, radio, television or other media.
81   Certain matters not taken to be pre-trial disclosures
The disclosure of any information during or in relation to a case conference held for the purposes of this Division or a plea offer is not, for the purposes of section 22A of the Crimes (Sentencing Procedure) Act 1999, a pre-trial disclosure.
Note.
 Section 22A of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence made pre-trial disclosures.