A committal is meant to filter out weak cases. Section 94B lets a represented defendant switch the filter off. Whether to do so is one of the first tactical decisions in a serious criminal case.
The provision
(1) Subject to Subsection (2), a Court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements, with or without exhibits, tendered to the Court after service in accordance with Section 94, commit the defendant for trial for the offence without consideration of the contents of the statements.
(2) Committal under Subsection (1) shall not occur where (a) the defendant or one of the defendants does not have legal representation; or (b) the legal representative of the defendant or one of the defendants requests the Court to consider a submission that the statements do not disclose sufficient evidence to put the defendant on trial.
Two conditions have to be met, and two things have to be absent. The evidence must be entirely on paper, and it must have been served under section 94. There must be no unrepresented defendant, and no request from a lawyer for a sufficiency submission.
Why it exists
The procedure is a short-cut which, if the defendant is legally represented and waives the right to a committal hearing, permits the brief of depositions to be passed direct to the National Court without a hearing. The defendant is committed without the District Court having exercised any judicial function other than the collection of the witness statements and a formal order of committal. If the defendant has legal representation, the onus is on the defence to decide whether to challenge the form or content of the prosecution evidence at the committal stage.
The logic is that a lawyer who has read the brief can judge whether a committal fight is worth having. Where the evidence plainly discloses a case, the fight only delays the trial, and a defendant in custody may prefer speed.
The conditions in practice
| Condition | What the Court checks |
|---|---|
| All the evidence is written statements | The Manual suggests asking prosecutor and defence to confirm that neither wishes to submit any evidence other than the statements lodged |
| Served in accordance with s 94 | The affidavit of service on the file; 14 days before the hearing |
| Every defendant legally represented | Under s 59: a lawyer, a certified trainee or student, a person authorised by law, or a person given leave. The Manual and the case law speak of a “legally represented” defendant, and a magistrate should be slow to treat a lay representative by leave as satisfying s 94B(2)(a) |
| No request for a sufficiency submission | A reasonable time must be allowed for the defence to decide; silence after that may be taken as no request |
Asking for a sufficiency submission
A defence lawyer who wants the magistrate to read the evidence need only request the Court to consider a submission that it is insufficient. That request takes the case out of section 94B and into the ordinary committal under sections 94C, 95 and 96: the Court then inquires into whether each statement was read and understood by its maker, decides whether the prosecution evidence is sufficient, and gives the defendant the section 96 opportunity. The request need not succeed to be worth making; the Manual notes the traditional benefits of a full committal, including obtaining precise details of the charge and locking witnesses into their statements for later cross-examination at trial.
What a section 94B committal means
Section 100(3)(b) provides that where the Court commits under section 94B(1) it proceeds straight to remand in custody or bail. There is no finding that the evidence is sufficient, because the Court has not read it. There is no section 96 explanation or statement, because the examination of the defendant under Division 1 follows a section 95 finding that the Court has not made. And there is no section 94C inquiry into the statements, so the Kai Wabu safeguard is not applied. A defendant who later wants to attack the statements must do so at trial in the National Court, where the trial judge decides admissibility.
Two things do still happen. Section 118 requires the Court to send a notice of committal to the Registrar of the National Court and the statements to the Public Prosecutor, who under section 525 of the Criminal Code decides what, if anything, to indict for. And bail is considered under section 8 of the Bail Act and section 105 of the Act, because committal in custody is not automatic.
Unrepresented defendants
Section 94B(2)(a) is absolute: if any defendant is unrepresented, the Court must conduct a full committal for everyone. That protects the unrepresented person, who cannot be expected to judge whether the papers disclose a case, and it explains why in a multi-defendant committal the presence of one unrepresented co-accused slows the process for all. The Public Solicitor’s involvement in committals is often what makes section 94B available. See do I need a lawyer.
Deciding whether to consent
The decision belongs to the defendant on advice. Factors in favour of a paper committal are custody, the strength of the evidence, and the likelihood of an early trial date. Factors against are a weak or technically defective brief, statements taken through interpreters without certificates, a real prospect of discharge under section 95, and the value of a section 96 statement or of testing a key witness. See the test for committal.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.