A preliminary hearing is a hearing held by the court to determine if there’s enough evidence for a case to go to trial. A preliminary hearing is also known as a preliminary inquiry – the two phrases can be used interchangeably.
Who Is Entitled to a Preliminary Hearing?
Not every charge entitles the accused to a preliminary inquiry. Preliminary inquiries are only acceptable in cases of serious nature or indictable offences such as murder, rape, acts of terrorism, robbery, treason, drug trafficking, etc. Most individuals accused of minor crimes have no right to a preliminary inquiry.
An accused has the right to opt for a preliminary hearing or decide not to have one. For example, suppose the accused chooses to waive their right to a preliminary inquiry. In that case, they’ll be accepting that there’s enough evidence for the case to go to trial with no need for a preliminary inquiry.
However, this doesn’t necessarily mean admission of guilt.
The accused can decide to waive their right to a preliminary inquiry in some cases, but the Crown Attorney can also decide otherwise. When that happens, the attorney can conduct a preliminary hearing regardless of the decision of the accused.
However, the accused should be aware that conducting a preliminary hearing comes with certain risks. For example, let’s say the Crown Attorney presents credible evidence that discloses another charge other than the one brought before the judge. In that case, the judge may also decide to have the accused tried for the new charge.
This is why the accused should always work with a qualified lawyer for legal advice regarding their right to a preliminary hearing. Such a lawyer is in a better position to decide whether the accused should waiver their right to a preliminary hearing or not.
Scenarios Where a Preliminary Hearing Favours the Accused
There are some situations where a preliminary hearing can be advantageous to the accused. They include:
● When the accused wants to make a pretrial application or charter argument based on the evidence from the witnesses.
● When the accused knows that some Crown witnesses may fail to attend the trial hence needs their evidence recorded before trial.
Scenarios Where a Preliminary Hearing Doesn’t Favour the Accused
A preliminary hearing won’t favour the accused under the following circumstances:
● When the accused can’t afford a lawyer.
● The preliminary hearing would further delay the trial.
● The preliminary hearing would make the prosecution aware of their weaknesses and give them a chance to fix that before the trial begins.
Conditions for a Preliminary Hearing
A preliminary inquiry can only be held when the following conditions are met:
● The accused is charged with an indictable offence or a hybrid offence where the Crown elects to proceed by way of indictment.
● The accused is facing a jail term of not less than 14 years if convicted.
● The accused has the option of choosing their trial at the Superior Court of Justice.
● The accused or Crown has requested a preliminary hearing.
What Does a Preliminary Hearing Entail?
Here’s what happens at a preliminary hearing:
The prosecutor presents crucial evidence against the accused at a preliminary hearing and calls witnesses to provide evidence against the accused. The court allows the defence lawyer to cross-examine the witnesses brought forward by the Crown prosecutor.
The prosecutor only needs to convince the court that credible evidence exists to present and convict the accused. But they don’t need to prove beyond reasonable doubt that the accused is guilty. This is why judges dismiss very few cases at this stage – most proceed to trial.
The court then reviews the prosecutor’s evidence and witness testimony and decides if it’s sufficient for trial. If the court finds that the evidence is sufficient, it sends the case to trial. The court will then set a trial date if the accused pleads not guilty.
However, if the court finds the evidence insufficient, it dismisses the case and discharges the accused.
Significance of a Preliminary Hearing
A preliminary hearing:
● Allows the accused to understand the weight of the case against them.
● Allows the accused to plan their defence at trial.
● Offers an opportunity to resolve the case before trial.
What if More Than One Person Is Accused?
There are cases where the Crown prosecutor accuses more than one person of an indictable offence. In such a case, slightly different conditions must be met to proceed to a preliminary hearing.
Firstly, it requires only one of the accused persons to request a preliminary hearing, and all the other co-accused persons will have to attend the hearing. The co-accused can also request the court to try them separately by submitting a severance application.
However, submitting a severance application is not always easy because several conditions have to be met for the court to accept the application. The conditions include:
● There must be valid reasons that make it unfair for an individual to be tried with other co-accused persons.
● There’s little or no public interest in having the co-accused persons tried together.
If the court accepts the severance application of an accused, their case will be decided separately. Additionally, they won’t have to go to a preliminary inquiry with the co-accused.
If you’ve been charged with a serious crime, don’t risk appearing before the court without legal representation. You need an experienced criminal defence lawyer to fight for you. Contact Vilkhov Law today!