Criminal proceedings - How to start proceedings

1. Check your information

Check that you are initiating the right proceedings, and that you are initiating the case within the specified time limit.

2. Find the right form

The summons is to claim an order under s 246 of the Criminal Procedure Act 1986 in respect of the offence and claim that the defendant be dealt with accordingly to law for commission of the offence (Pt 5 r 5.3(1) of the Land and Environment Court Rules 2007). 

An order under s 246 of the Criminal Procedure Act is that the defendant appear before the Court at a specified date, time and place to answer to the offence charged in the order, or for the arrest of the defendant for the purpose of being brought before a judge of the Court to answer to the offence charged in the order (s 246(1)).

3. Attach the right documents

When filing the summons, the prosecutor is to lodge copies of a minute of the order under s 246(1) of the Criminal Procedure Act claimed by the prosecutor.

A summons seeking an order under s 246 of the Criminal Procedure Act is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged (Pt 5 r 5.3(2) of the Land and Environment Court Rules).

4. Check the fee

There is a Court filing fee that has to be paid to the Court to commence Class 5 criminal proceedings.  The current fee is specified in the Schedule of Court fees.

5. File the summons and obtain an order

On filing the summons, the prosecutor is to apply orally to the Court’s registrar for the prosecutor’s summons claiming an order under s 246(1) of the Criminal Procedure Act to be heard before a judge, usually the Duty Judge.  A date, time and place will be organised. Usually, the application is dealt with in the judge’s chambers, with the legal representatives of the prosecutor in attendance.  The prosecutor needs to establish that it is appropriate for the judge to exercise the coercive powers for which s 246(1) of the Criminal Procedure Act provides.  If so satisfied, the judge will make an order under s 246(1) of the Criminal Procedure Act, either that the defendant appear before the Court at a date, time and venue specified or that the defendant be apprehended for the purpose of being brought before a judge to answer to the offence charged in the order.

The prosecutor will then proceed to the Court’s registry at level 4, 225 Macquarie Street, Sydney for the purpose of formally filing the summons and affidavits and paying the filing fee and having the order made by the judge entered.  The prosecutor needs three copies of each of the summons, order and affidavits, if there is one defendant, and an additional copy for each additional defendant.

The Court will process the summons and order at the Court’s registry.  The summons will be recorded in the Court’s record system and stamped as having been filed with the Court.  The order under s 246(1) of the Criminal Procedure Act made by the judge will be entered.  The date, time and place for the defendant to answer to the offence charged in the order (usually at the first directions hearing) will be specified in the order and the copies.  It will usually be six weeks after the date the proceedings were commenced and the order was made.

The Court’s registry will keep one copy of the summons, order and affidavits for the Court’s file and return the other copies to the prosecutor.  One of the returned copies is for the prosecutor to keep and the other sets of copies are to be served on each defendant.

6. Serve the summons and order

The sealed order and stamped copy of the summons and affidavits need to be served, usually personally, on each defendant. 

7. Defendant appears

The defendant is to appear before the Court at the date, time and venue specified in the order. Usually this is the first directions hearing.