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In law, a committal procedure is the process by which a defendant is charged with a serious offence under the criminal justice systems of all common law jurisdictions outside the United States. The committal procedure, sometimes known as a preliminary hearing, replaces the earlier grand jury process.
In most jurisdictions criminal offences fall into one of three groups:
There are less serious (summary) offences which are usually heard without a jury by a magistrate. These are roughly equivalent to the older category of misdemeanors (terminology that is now obsolete in most non-U.S. jurisdictions).
There are intermediate offences which are indictable (equivalent to an old-style felony), but which can be heard summarily. For instance, theft is usually a serious offence. If however the charge is that the defendant stole a packet of biscuits worth only a very small amount, it would probably be heard by a magistrate. In Canada, these are known as hybrid offences, whereas in England and Wales, these are known as either way offences, and can only be heard summarily with the defendant's consent and if the Magistrates' Court finds that matter is suitable for summary trial. In Victoria, Australia they are called indictable offences triable summarily. As well as the defendant's consent the Magistrate must regard the offence as appropriate to be heard in the lower court.
Finally, there are serious matters which must be dealt with in the higher courts, usually before a jury. When one is charged with an offence of the third type, a preliminary hearing is first held by a magistrate to determine whether there is sufficient evidence to warrant committing the defendant for trial. That is, whether there is sufficient evidence such that a properly instructed jury could (not would) find the defendant guilty. It is a very low-level test. The majority of committal proceedings result in a committal to trial.
In some jurisdictions the prosecuting authority may directly present a defendant for trial regardless of the result of the committal proceedings by filing an ex officio indictment. Equally, the prosecuting authority usually has the power to stop any prosecution by entering a Nolle prosequi. In many jurisdictions the right of a defendant to cross-examine witnesses during the committal is reliant on the defence establishing that it is in the interests of justice or to illuminate some relevant point. The defence very rarely calls witnesses at a committal.
- For example, Magistrates Court Act, 1989 (Victoria)
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