Division 2A Pre-hearing procedure for offences and sentence
indications
Note for Division 2A
Section 5(2)(ha) of the Sentencing Act 1995 provides that, in sentencing a
defendant, the court must have regard to the conduct of the defendant during the
proceedings, including the extent to which the defendant complied with a
requirement imposed on the defendant under this Division.
60AA Definitions
criminal record, see section 3(1) of the Criminal Records (Spent
Convictions) Act 1992.
directions hearing means a directions hearing that is required
under section 60AI.
disclosure requirement means a requirement that the defendant
do one of the following:
(a) serve a notice under section 60AG(1);
(b) indicate something under section 60AJ(2);
(c) disclose information under an order mentioned in
section 60AK(2)(a);
(d) serve a document or thing under section 60AM(2);
(e) serve a document, thing or notice under section 60AN(2).
document has the same meaning as in the Evidence (National
Uniform Legislation) Act 2011.
evidence of an alibi, see section 331(6) of the Criminal Code.
Local Court (Criminal Procedure) Act 1928 16
expert evidence material means:
(a) written notice of the name and, if known, the address of the
person whom the defendant intends to call to give expert
evidence; and
(b) a written description of the expert evidence intended to be
adduced.
later sentence indication, see section 60AZB(2).
original sentence indication, see section 60AZB(1).
sentence indication means an indication, given by the Court under
section 60AT, of a sentence that the Court would likely impose on a
defendant.
60AB Object of Division
The object of this Division is to:
(a) provide for fair, efficient, expeditious and economical case
management procedures in the criminal jurisdiction of the
Local Court including by:
(i) facilitating, if appropriate, a defendant's guilty plea to an
offence at an early stage of proceedings in relation to a
complaint or information before the Court; and
(ii) ensuring that, if a complaint or information proceeds to a
hearing of a charge, the hearing is focused on the issues
that are in dispute; and
(iii) minimising the time between the making of a complaint
or the laying of an information and the hearing of the
charge; and
(b) minimise the trauma that might be experienced by victims of
crime.
60AC Application of this Division
(1) This Division applies to all criminal proceedings in the Court, except
those that are subject to a committal in Part V:
(a) if the matter is heard and determined in Darwin, Alice Springs
or Tennant Creek; or
Local Court (Criminal Procedure) Act 1928 17
(b) if the matter is heard and determined in any other place – to
the extent a practice direction made under section 49 of the
Local Court Act 2015 requires.
(2) Despite section 49 of the Local Court Act 2015, a practice direction
that regulates procedures of the Court when a matter is heard and
determined as mentioned in subsection (1)(b) must be consistent
with the object of this Division and adopt the provisions of this
Division to the extent practicable.
60AD Prosecution's obligations after first mention
(1) This section applies once the information has been laid or the
complaint has been made in relation to a charge.
(2) The prosecution must, within 7 days after the matter is first
mentioned in Court:
(a) serve a preliminary brief of evidence on the defendant; and
(b) file with the Court a copy of the statement of the alleged facts
on which the charge is founded, mentioned in
section 60AF(1)(a).
(3) The purpose of filing the statement with the Court is to assist the
Court to facilitate the conduct of the directions hearing.
60AE Contents of preliminary brief of evidence
(1) A preliminary brief of evidence mentioned in section 60AD must
include the following:
(a) a copy of the information or complaint in relation to the charge;
(b) a statement in relation to the charge made by an informant or
the prosecution that complies with section 60AF;
(c) any certificate of evidence that is issued under an Act, likely to
be relevant to the charge, and available to the prosecution at
the time the preliminary brief is served;
(d) a copy of the defendant's criminal record or a written
statement made by the prosecution that the defendant does
not have a criminal record;
(e) any written statement made by the informant or prosecution
that the informant or prosecution will not disclose any
document or thing that would otherwise be included in the
Division Div 2A - Local Court (Criminal Procedure) Act 1928 - Pre-hearing procedure for offences and sentence | Zoe
Local Court (Criminal Procedure) Act 1928 18
preliminary brief but that the informant or prosecution is not
required by law to disclose;
(f) if there is any information recorded by audio-visual, audio or
visual means (including closed-circuit television) in relation to
the charge:
(i) a copy of the recording, if it is available to the
prosecution at the time the preliminary brief is served; or
(ii) if the recording is not available to the prosecution at the
time the preliminary brief is served – a written statement
made by the prosecution that there is information
recorded that the prosecution intends to obtain;
(g) subject to subsection (2), any other document or thing that
may assist the defendant in understanding the evidence
against the defendant that is available to the prosecution at
the time the preliminary brief is served;
(h) any other document or thing prescribed by the regulations.
(2) The prosecution is not required to include, in the preliminary brief, a
transcript of a recording of an interview conducted with the
defendant in relation to the charge.
Note for subsection (2)
A transcript is also not required for a recorded statement under Part 3A of the
Evidence Act 1939 in a domestic violence offence proceeding – see
section 21N(1) of that Act.
(3) Subsection (1)(f) does not apply in relation to a recorded statement
under Part 3A of the Evidence Act 1939 in a domestic violence
offence proceeding.
60AF Statement made by informant or prosecution
(1) For section 60AE(1)(b), a statement made by an informant or the
prosecution must be a complete and accurate statement of the
material available to the informant or prosecution at the time the
statement is made and must include the following:
(a) a statement of the alleged facts on which the charge is
founded, including reference to any evidence available to the
prosecution to support the alleged facts;
(b) a copy of any document or thing containing an admission
made by the defendant, and a written summary of any oral
statements made by the defendant, in relation to the charge;
Local Court (Criminal Procedure) Act 1928 19
(c) in relation to persons who may be called as witnesses at the
hearing in relation to the charge:
(i) a list that contains:
(A) the name of each witness; or
(B) a description of each witness; or
(C) a description of each class of witness; and
(ii) an outline of the evidence that each witness is expected
to give at the hearing; and
(iii) an indication of whether any of those persons have
made a statement;
(d) a list of any documents or things the prosecution might tender
as exhibits at the hearing in relation to the charge and an
indication of whether the documents or things are in the
possession of the prosecution at the time the statement is
made.
(2) In this section:
admission has the same meaning as in the Evidence (National
Uniform Legislation) Act 2011.
60AG Defendant's disclosure requirements for evidence of an alibi
(1) If the defendant intends to adduce evidence of an alibi in relation to
the charge, the defendant must serve the prosecution with a notice
of the following:
(a) the defendant's intention to adduce evidence of an alibi;
(b) the particulars of the alibi;
(c) a list of the names of the persons whom the defendant intends
to call as witnesses to give the evidence and the address for,
or other information that would help locate, each person.
(2) The defendant must comply with subsection (1):
(a) not less than 7 days before the date and time appointed for a
directions hearing for the matter; or
(b) if the defendant decides to adduce evidence of an alibi within
the period that begins 7 days before the date appointed for a
directions hearing – as soon as practicable after the defendant
makes the decision.
Local Court (Criminal Procedure) Act 1928 20
(3) The Court may dispense with the disclosure requirements under
this section if the Court is satisfied that there is good reason to do
so.
60AH Purpose of directions hearing
A directions hearing is a hearing conducted by the Court in relation
to a matter in order to identify the following:
(a) the issues that are in dispute and the issues that are not in
dispute;
(b) the steps required to progress the matter.
60AI Directions hearing
(1) This section applies if a defendant has not pleaded guilty to a
charge at the first mention in Court in relation to the charge.
(2) The Court must appoint a date and time for a directions hearing that
is at least 4 weeks after the first mention.
(3) Subject to subsection (4), the defendant must attend the directions
hearing.
(4) The Court may order, if the Court is satisfied that there is good
reason to do so, that:
(a) the defendant may appear at the directions hearing by the
defendant's legal practitioner; and
(b) the defendant is not required to attend the directions hearing.
(5) The defendant may apply to the Court to appoint a date and time
for the directions hearing that is earlier than 4 weeks after the first
mention.
(6) The Court may appoint a date and time for a directions hearing that
is earlier than 4 weeks after the first mention:
(a) on an application under subsection (5) or on the Court's own
initiative; and
(b) only if the Court is satisfied that there is good reason to do so.
(7) Unless the parties to the directions hearing agree otherwise,
evidence of anything said or done in the course of the directions
hearing, or any document prepared for the directions hearing, is not
admissible in any proceedings in any court or tribunal or before any
person acting judicially.
Local Court (Criminal Procedure) Act 1928 21
(8) Nothing in this section:
(a) prevents the defendant from pleading guilty to a charge after
the first mention but before the date and time appointed for the
directions hearing; or
(b) prevents the Court from appointing a date and time for another
mention of the matter before the date and time appointed for
the directions hearing.
60AJ Procedure for directions hearing
(1) At the directions hearing, the prosecution must indicate:
(a) if any document or thing that is required to be provided to the
defendant has not been provided to the defendant; and
(b) the prosecution's estimate of the length of the hearing if the
matter should proceed to a hearing; and
(c) any orders the prosecution is likely to seek in relation to the
(2) At the directions hearing, the defendant must indicate:
(a) the issues that are in dispute and the issues that are not in
dispute; and
(b) whether the defendant intends to plead guilty or not guilty; and
(c) if the defendant intends to adduce any evidence of an alibi in
relation to the charge; and
(d) if the defendant intends to call any witnesses to give evidence
of an alibi in relation to the charge or any expert witnesses;
and
(e) the defendant's estimate of the length of the hearing if the
matter should proceed to a hearing; and
(f) any orders the defendant is likely to seek in relation to the
60AK Orders at directions hearing
(1) The Court may, at a directions hearing, make orders to progress a
(2) Without limiting subsection (1), the Court may make orders for:
(a) a defendant to disclose information to the prosecution; or
Local Court (Criminal Procedure) Act 1928 22
(b) the prosecution to disclose information to the defendant.
(3) If, at the directions hearing, the defendant pleads guilty to the
charge, the Court may:
(a) accept the plea of guilty; and
(b) do one of the following:
(i) sentence the defendant for the charge;
(ii) appoint a date and time for the sentencing of the
defendant for the charge.
(4) At the conclusion of the directions hearing, the Court must appoint
a date and time for one or both of the following:
(a) if the Court considers another directions hearing is required –
another directions hearing;
(b) a hearing in relation to the charge.
60AL Prosecution or defendant may apply for matter to be
considered
Section 60AK does not prevent the prosecution or defendant from
making an application to the Court, before the matter is next before
the Court under section 60AK(4), to appoint a date and time for the
matter for:
(a) another directions hearing; or
(b) if the defendant indicates after a directions hearing that the
defendant intends to plead guilty to the charge – the
sentencing of the defendant for the charge.
60AM Defendant's disclosure requirements for expert evidence and
objections
(1) This section applies in relation to proceedings in relation to which a
date and time have been appointed for a hearing in relation to the
(2) The defendant must serve the prosecution with the following:
(a) a document or thing in relation to any expert evidence that the
defendant intends to adduce at the hearing;
Local Court (Criminal Procedure) Act 1928 23
(b) written notice of an objection, and the grounds for the
objection, by the defendant to:
(i) a document or thing that the prosecution intends to
tender as evidence at the hearing; or
(ii) evidence to be given by a witness whom the prosecution
intends to call at the hearing.
(3) The defendant must comply with subsection (2) not less than
21 days before the date and time appointed for the hearing.
(4) This section applies to a defendant in addition to the requirements
under section 177 of the Evidence (National Uniform Legislation)
Act 2011.
60AN Defendant's disclosure requirements for subsequent evidence
(1) This section applies:
(a) in relation to proceedings in relation to which a date and time
have been appointed for a hearing in relation to the charge;
and
(b) if the defendant obtains a document or thing in relation to any
expert evidence material or decides to make an objection
within 21 days of the date and time appointed for the hearing
for the matter.
(2) The defendant must serve the prosecution, as soon as practicable
after obtaining the document or thing or deciding to make the
objection, with the document or thing or a written notice of the
objection under section 60AM(2).
60AO Defendant's disclosure requirements – Court may make orders
The Court may dispense with the disclosure requirements under
section 60AM or 60AN if the Court is satisfied that there is good
reason to do so.
60AP Prosecution and defendant to confirm hearing
(1) This section applies in relation to proceedings in relation to which a
date and time have been appointed for a hearing in relation to the
(2) Each of the prosecution and the defendant must give a written
notice to the Court that they are ready to proceed with the hearing
7 days before the date appointed for the hearing.
Local Court (Criminal Procedure) Act 1928 24
60AQ Consequences of non-disclosure
(1) If, at the hearing in relation to a matter, the Court is satisfied that
the defendant has not complied with a disclosure requirement, the
Court, on the application of the prosecution, may adjourn the
hearing to a time that would allow enough time:
(a) for the defendant to do what is required by the provision that
imposes the disclosure requirement; and
(b) for the prosecution to further prepare its case and to obtain
any further evidence that may be necessary as a result of the
disclosure.
(2) On the resumption of a hearing adjourned under subsection (1), the
Court may permit the prosecution to adduce further evidence,
whether or not obtained as a result of the disclosure.
60AR Court may shorten or extend time
The Court may, at any time, shorten or extend the time required for
doing anything under this Division if the Court is satisfied that there
is good reason to do so.
60AS Prosecution's obligations in relation to disclosure not affected
This Division does not affect the prosecution's obligations in relation
to disclosure and the consequences for any failure in relation to
those obligations under this Act, any other Act, or a law of the
Commonwealth, or at common law.
60AT Sentence indication
(1) The defendant may apply for a sentence indication from the Court
during criminal proceedings.
(2) The Court may indicate that, if the defendant pleads guilty to a
charge at the time of the application, the Court would be likely to
impose on the defendant:
(a) if sections 78CA and 78CB of the Sentencing Act 1995 do not
apply – a sentence of actual imprisonment to commence at a
specified time; or
(b) a sentence of another specified type; or
Local Court (Criminal Procedure) Act 1928 25
(c) if section 78CB of the Sentencing Act 1995 applies to the
offence – a sentence of actual imprisonment as required by
that section; or
(d) if section 78CA of the Sentencing Act 1995 applies to the
offence:
(i) a sentence that is the minimum sentence of actual
imprisonment that the Court is required to impose for the
offence; or
(ii) a sentence that takes into account exceptional
circumstances under section 78DB of the Sentencing
Act 1995, if the Court is satisfied that, if the Court were
imposing a sentence on the defendant, the
circumstances of the case would be exceptional.
(3) Subject to subsection (4), the Court may give a sentence indication
at any time during proceedings.
(4) If the Court has appointed a date and time for a hearing in relation
to the charge, the Court must not give a sentence indication within
7 days before the date appointed for the hearing.
(5) The Court may refuse to give a sentence indication if the Court is
satisfied that there is good reason to do so.
(6) A decision to give or not to give a sentence indication is final.
60AU Court to have regard to material for sentence indication
(1) Before giving a sentence indication to a defendant, the Court must
have regard to the following:
(a) a statement of the agreed facts on which the charge is based;
(b) the defendant's criminal record.
(2) The Court must also have regard to a victim impact statement or
victim report if the statement or report is available at the time of the
(3) However, the Court is not required to have regard to a victim impact
statement or victim report that is available at the time of the
sentence indication if:
(a) section 78CA of the Sentencing Act 1995 applies to the
offence; and
(b) the Court would not have regard to the victim impact
Local Court (Criminal Procedure) Act 1928 26
statement or victim report if the Court were:
(i) imposing the sentence on the defendant; and
(ii) deciding whether the Court was satisfied that the
circumstances of the case were exceptional under
section 78DB of the Sentencing Act 1995.
(4) The Court may have regard to any other material that is relevant to
the offence and available at the time of the sentence indication.
(5) In this section:
victim impact statement, see section 106A of the Sentencing
Act 1995.
victim report, see section 106A of the Sentencing Act 1995.
60AV Court not bound by sentence indication
The Court is not bound by a sentence indication when imposing a
sentence on the defendant if the Court that imposes the sentence is
constituted by a different Judge to the Judge that gave the
60AW Court may withdraw sentence indication
(1) The Court may withdraw a sentence indication if:
(a) the defendant does not plead guilty to the offence as a result
of the sentence indication within a reasonable time after the
sentence indication was given; or
(b) there has been a change in circumstances that would likely
cause the Court to impose a more severe sentence than the
sentence indicated:
(i) before the defendant pleads or does not plead guilty to
the offence; or
(ii) after the defendant pleads guilty to the offence, if the
defendant has pleaded guilty as a result of the sentence
indication.
(2) Before withdrawing a sentence indication under subsection (1)(b),
the Court must:
(a) be satisfied that the sentence that the Court has indicated it is
likely to impose would not, as a result of the change in
circumstances, be an appropriate sentence; and
Local Court (Criminal Procedure) Act 1928 27
(b) inform the defendant that the Court would likely impose a
more severe sentence than the sentence indicated.
(3) If the Court withdraws a sentence indication under
subsection (1)(b)(ii), the defendant may withdraw the plea of guilty.
(4) A sentence indication may be withdrawn under this section only if
the Court is constituted in one of the following ways:
(a) the Court is constituted by the same Judge as the one who
gave the sentence indication;
(b) if section 60AZC applies, the Court is constituted by another
Judge.
60AX Sentence indication not admissible
An application for a sentence indication, or a sentence indication, is
not admissible in any proceedings in any court or tribunal or before
any person acting judicially.
60AY Sentence indication does not affect appeal rights
A sentence indication does not affect the defendant's or
prosecution's right to appeal against a sentence imposed on the
defendant for the offence.
60AZ Sentence indication and plea of guilty
(a) the Court gives a sentence indication; and
(b) the defendant pleads guilty to the offence as a result of the
(2) Subject to section 60AZC(1), the Court, when imposing a sentence
on the defendant for the offence:
(a) must be constituted by the same Judge as the one who gave
the sentence indication; and
(b) must not impose a more severe sentence than the sentence
indicated.
60AZA Sentence indication and no plea of guilty
(a) the Court gives a sentence indication; and
Local Court (Criminal Procedure) Act 1928 28
(b) the defendant does not plead guilty to the offence as a result
of the sentence indication.
(2) Unless the parties agree, the Court that finally determines the
charge must not be constituted by the same Judge who gave the
60AZB Sentence indication from one Judge only
(a) the Court gives a sentence indication (the original sentence
indication); and
(b) the defendant does not plead guilty to the offence as a result
of the original sentence indication.
(2) Subject to section 60AZC(2), the defendant may apply for another
sentence indication (the later sentence indication) only if:
(a) the Court is constituted by the same Judge as the one who
gave the original sentence indication; and
(b) there has been a change in circumstances that is likely to
materially affect the appropriateness of the original sentence
indicated.
(3) This Subdivision applies to a later sentence indication in the same
way as it applies to a sentence indication.
60AZC Constitution of Court to withdraw sentence indication,
sentence or give later sentence indication
(1) The Court may be constituted otherwise than as required by
section 60AW(4)(a) or 60AZ(2)(a) if the Judge who constituted the
Court that gave the sentence indication is unable to withdraw the
sentence indication or impose the sentence.
(2) The Court may be constituted otherwise than as mentioned in
section 60AZB(2)(a) if the Judge who constituted the Court that
gave the original sentence indication is unable to give the later
(2) For this section, a Judge is unable to withdraw the sentence
indication, impose the sentence or give the later sentence indication
if the Judge:
(a) has died or ceased to hold office; or
Local Court (Criminal Procedure) Act 1928 29
(b) is, by reason of illness, injury or other cause, unlikely to be
able to constitute the Court within a reasonable time.