Northern Territory Numbered Acts Northern Territory Numbered ActsSections 105AA to 106
repeal, substitute
If an information is laid under section 101 for an indictable offence, a preliminary examination must be conducted by a Justice unless:
(a) an indictment for the offence signed under section 300 of the Criminal Code has been presented; or
(b) the offence is dealt with under Division 2.
(1) This section applies if:
(a) a youth, as defined in the Youth Justice Act , and an adult are charged with offences founded on the same facts; and
(b) under the Youth Justice Act the charge against the youth is to be dealt with by way of preliminary examination; and
(c) under this Act the charge against the adult is to be dealt with by way of preliminary examination.
(2) If this section applies, the 2 preliminary examinations may be conducted by a Magistrate as a joint preliminary examination.
(3) When conducting a joint preliminary examination:
(a) for the charge against the youth – the Magistrate constitutes the Youth Justice Court and must deal with the matter under the Youth Justice Act ; and
(b) for the charge against the adult – the Magistrate acts in his or her capacity as a Justice and must deal with the matter under this Act.
(4) A Magistrate conducting a joint preliminary examination may, at any stage, disjoin the examinations and deal with the defendants separately if satisfied it would be in the interests of justice to do so.
(5) When a joint preliminary examination is conducted, the examination:
(a) in so far as it relates to the youth, is a preliminary examination under the Youth Justice Act ; and
(b) in so far as it relates to the adult, is a preliminary examination under this Act.
(1) If a preliminary examination must be conducted, the prosecutor must serve on the defendant a committal brief that complies with section 105D.
(2) Subject to sections 105D(2) and 105E, the committal brief must be served on the defendant at least 28 days before the committal date unless:
(a) a Justice fixes a different period for service; or
(b) the defendant consents to a shorter period of service.
(3) A committal brief must be served:
(a) if the defendant is not represented by a legal practitioner – on the defendant personally; or
(b) if the defendant is represented by a legal practitioner – on the legal practitioner personally or by post.
(4) The prosecutor must file a copy of the committal brief with the clerk as soon as practicable after it is served under subsection (3).
(1) A committal brief must contain all of the following:
(a) a copy of the information for the charge to which the preliminary examination relates;
(b) a notice stating a preliminary examination is to be conducted and where and when it will take place;
(c) a notice, in the form prescribed by the Rules under section 201A, explaining:
(i) the purpose and nature of a preliminary examination; and
(ii) that the prosecution's evidence will include the written or recorded statements of the listed witnesses and any listed exhibits; and
(iii) the defendant's rights and obligations under sections 105G to 105L;
(d) a list of:
(i) the persons whose statements the prosecutor proposes to tender as evidence at the preliminary examination (the listed witnesses ); and
(ii) any other documents or things the prosecutor proposes to tender as evidence at the preliminary examination (the listed exhibits );
(e) for each listed witness – the documents required by section 105F(1) to (3) (as appropriate);
(f) for each listed exhibit – the information required by section 105F(4).
(2) Despite subsection (1), if it is not reasonably practicable for a document mentioned in subsection (1)(e) or (f) to be included in the committal brief when it is served:
(a) the document need not be included in the committal brief when it is served; but
(b) the prosecutor must serve the document on the defendant as soon as it becomes practicable to do so.
(3) A document required by subsection (2) to be served on the defendant:
(a) must be served as provided in section 105C(3) for service of the committal brief; and
(b) when served, forms part of the committal brief.
(1) This section applies if, after the committal brief is served, there is any change as to:
(a) who the persons are whose statements the prosecutor proposes to tender as evidence at the preliminary examination; or
(b) what other documents or things the prosecutor proposes to tender as evidence at the preliminary examination.
(2) If this section applies, the prosecutor must:
(a) update the list mentioned in section 105D(1)(d) or prepare a supplementary list; and
(b) serve on the defendant:
(i) the updated or supplementary list; and
(ii) the documents mentioned in section 105D(1)(e) or (f) (as appropriate) for any witness or exhibit added to the list.
(3) A document required by subsection (2) to be served on the defendant:
(a) must be served as provided in section 105C(3) for service of the committal brief; and
(b) when served, forms part of the committal brief.
(1) For each listed witness, the committal brief must contain:
(a) if the witness' statement is written – a copy of the statement that complies with subsections (2) and (3); or
(b) if the witness' statement is recorded:
(i) a transcript of the recording; and
(ii) a statutory declaration made by the witness declaring that the recorded statement is true.
(2) A written witness statement must be in the form of, or accompanied by, a statutory declaration made by the witness declaring:
(a) that the witness has read the statement or, if the witness cannot read, that the statement has been read to him or her; and
(b) that the statement is true.
(3) If a listed witness is a child, the witness' statement:
(a) need not be, or be accompanied by, a statutory declaration; but
(b) must contain, or be accompanied by, a written statement of the witness' age.
(4) For each listed exhibit, the committal brief must contain:
(a) if the exhibit is a document – a copy of the document; or
(b) if the exhibit is not a document – a description of the exhibit (which may be included in the list under section 105D(1)(d)) or a photograph of the exhibit.
(5) The prosecutor must give to the defendant and the defendant's legal practitioner reasonable opportunity before the committal date to:
(a) listen to, and for an audio-visual recording, view, any recorded statements of listed witnesses; and
(b) inspect any listed exhibits.
(6) In this section:
"statutory declaration" includes an affidavit.
(1) The defendant may apply to the Justice conducting the preliminary examination for leave to cross-examine a listed witness.
(2) An application for leave to cross-examine must be made at least 14 days before the committal date.
(3) The Justice may permit the defendant to make a late application for leave to cross-examine if satisfied that it is in the interests of justice to do so, having regard to the reason why the application was not made in time.
(1) The defendant cannot cross-examine a witness at a preliminary examination unless:
(a) the defendant applies under section 105G or 105J(9)(b) for leave to cross-examine; and
(b) the Justice grants leave under this section.
(2) If the prosecutor consents to leave being granted, the Justice must grant leave unless satisfied it would not be in the interests of justice to do so.
(3) If the prosecutor does not consent to leave being granted, the Justice must not grant leave unless satisfied:
(a) the defendant:
(i) has identified an issue to which the proposed cross-examination relates; and
(ii) has provided a reason why the evidence of the witness is relevant to that issue; and
(b) cross-examination of the witness on that issue is justified having regard to the matters mentioned in subsections (4) and (5).
(4) In determining whether cross-examination is justified, the Justice must have regard to the need to ensure that:
(a) the prosecution case is adequately disclosed; and
(b) the issues are adequately defined; and
(c) the evidence is sufficient to put the defendant on trial for any indictable offence; and
(d) a fair trial will take place if the matter proceeds to trial, including that the defendant will be able adequately to prepare and present a defence; and
(e) any matters relevant to a potential plea of guilty are clarified; and
(f) any matters relevant to a potential discontinuance of prosecution are clarified; and
(g) trivial, vexatious or oppressive cross-examination is not permitted; and
(h) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Justice is aware is taken into consideration; and
(i) the interests of justice are otherwise served.
(5) If the witness is a child, the Justice must also have regard to:
(a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and
(b) any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding; and
(c) the importance of the witness to the case for the prosecution; and
(d) the existence or lack of evidence that corroborates the proposed evidence of the witness; and
(e) the extent of any proposed admissions; and
(f) the probative value of the proposed evidence of the witness; and
(g) the issues in dispute; and
(h) the weight of the proposed evidence of the witness; and
(i) any statements of other witnesses that contradict the proposed evidence of the witness.
(6) If leave to cross-examine a witness is granted, the witness must attend at the time and place fixed for the giving of evidence by the witness.
(7) If a witness does not attend a preliminary examination when required to do so:
(a) the Justice may continue the preliminary examination in the absence of the witness; but
(b) the witness' handed-up witness statement is then inadmissible as evidence in the preliminary examination.
(1) A handed-up witness statement must be admitted at the preliminary examination as the evidence-in-chief of the witness as if the witness had appeared before the Justice and given evidence orally.
(2) If a handed-up witness statement is admitted under subsection (1), any listed exhibit mentioned in the statement must be admitted as if it had been mentioned by the witness while giving evidence orally.
(3) Subsections (1) and (2) apply:
(a) on proof of service of the handed-up witness statement; and
(b) subject to subsections (4) and (5) and section 105H(7)(b).
(4) The Justice may refuse to admit all or any part of a handed-up witness statement or a listed exhibit in accordance with any applicable rules of evidence.
(5) The Justice may refuse to admit a recorded handed-up witness statement or a listed exhibit if satisfied section 105F(5) has not been complied with.
(6) The Justice may grant leave to the prosecution for a listed witness to give oral evidence-in-chief supplementary to his or her handed-up witness statement if satisfied it is in the interests of justice to do so.
(7) The Justice may grant leave to the prosecution for a person who is not a listed witness to give evidence if satisfied it is in the interests of justice to do so.
(8) A witness for whom leave is granted under subsection (7) is to give the whole of his or her evidence-in-chief orally.
(9) If leave is granted under subsection (6) or (7):
(a) the witness must attend at the time and place fixed for the giving of evidence by the witness; and
(b) the defendant may apply for leave to cross-examine the witness.
(1) If leave to cross-examine a listed witness is granted, the evidence-in-chief of the witness at the preliminary examination must be confined to the witness:
(a) identifying himself or herself; and
(b) attesting to the truthfulness of his or her handed-up witness statement.
(2) Subsection (1) does not apply to a witness if leave is granted under section 105J(6) or (7) for the witness.
(3) A defendant who is granted leave to cross-examine a witness is not limited to cross-examining the witness on the issue for which leave was granted.
(4) However, the Justice may disallow any question asked during the cross-examination if it appears to the Justice that:
(a) the defendant has not:
(i) identified an issue to which the question relates; and
(ii) provided a reason why the evidence of the witness is relevant to that issue; or
(b) the question is not justified having regard to the matters mentioned in section 105H(4) and (5).
(5) A witness cross-examined by the defendant may be re-examined by the prosecutor.
(6) This section does not limit any other power the Justice may have to disallow a question asked of a witness.
(1) Despite any other provisions of this Act, a protected witness:
(a) is not required to attend a preliminary examination; and
(b) cannot be examined or cross-examined at a preliminary examination.
(2) In this section:
"protected witness" means:
(a) if the charge, or any of the charges, the subject of the preliminary examination is a charge of a sexual offence:
(i) a child; or
(ii) the alleged victim of the offence; or
(b) if the charge, or any of the charges, the subject of the preliminary examination is a charge of a serious violence offence – a child.
"sexual offence", see section 3 of the Sexual Offences (Evidence and Procedure) Act .