First Court Appearance
If you are certain you want to plead not guilty then you or your solicitor should inform the court that “you plead not guilty” to the charge. If you intend to get a Solicitor for the hearing you should contact that solicitor to obtain their available dates prior to this mention.
If you are not represented by a solicitor you should refer to the registrar as “registrar”. If you are represented by a solicitor there may be no need for you to appear at this mention, but you should check with your solicitor first.
Normally your matter will be adjourned for approximately 4-6 weeks to allow the Police enough time to prepare a brief of evidence. A brief of evidence contains all the evidence that the Police intend to rely upon at the hearing of the matter. Generally, Police are not able to call additional evidence that was not contained in the brief of evidence and served on you 28 days prior to the hearing.
Police do not always serve the brief of evidence upon you by the date allocated by the Registrar. This does not necessarily mean that they will not be able to serve the brief of evidence on you later. Normally, if the Police provide a reasonable excuse for not serving the brief upon you, the Registrar will give the Police further time to serve it. It may be possible to get your legal costs paid by the Police Force if they do not serve the brief upon you when they should have.
Second court appearance
If the Police have served the brief of evidence upon you and you still want to plead not guilty, you or your solicitor should ask the Registrar for a hearing date. You will be asked to complete a court listing advice that identifies the witnesses you want to cross examine and your estimate of how long the hearing will take. You may be asked what is in issue. If you intend to have a solicitor appear at the hearing you should obtain their available dates prior to the hearing.
It is possible to subpoena a person or organisation to produce documents that may help your case. You have to carefully draft subpoenas as you may be precluded access to documents if the subpoena is not specific. If you intend to issue a subpoena you should obtain a further mention date prior to the hearing to allow plenty of time for you to inspect the documents prior to the hearing.
The Police must prove that you are guilty of the offence beyond a reasonable doubt. If the Magistrate has a reasonable doubt than they must dismiss the charge. In most cases you do not have to prove anything and you are presumed to be innocent of the offence until proven guilty.
The Police Case
The Police Prosecutor who represents the Police will call witnesses to try and prove that you committed the crime. When the witnesses first give evidence, they are giving “evidence in chief”. You or your solicitor may object to questions
asked by the Police Prosecutor in certain circumstances. Unfortunately, it would be impossible to cover every possible objection that could be taken, in this guide.
After the Police Prosecutor has finished asking the witness questions you or your solicitor may cross examine the witness. Good cross examination skills are developed over many years so when choosing a solicitor enquire how many Criminal hearings the solicitor has been involved in, so that you are confident they will be able to break down the witnesses’ story. If you are not represented by a solicitor, you should plan what you intend to ask each witness, so that you may be effective.
After you or your solicitor has finished cross examining the witness the Police Prosecutor will be able to clarify any answers in re examination. After all witnesses have given evidence the Police Prosecutor will close the Police case.
Prima Facie Case
Before you are required to answer the Police case, the Magistrate has to decide whether taking the Police case at its highest you could be lawfully convicted of the offence. You or your solicitor are able to make submissions to the Magistrate as to why you could not be lawfully convicted. If you do make submissions you must be careful not to comment on whether a witness should be believed as the Magistrate may now allow you to give evidence.
Submissions – Why you should not be convicted
There is a principle of law that an accused person can make submissions as to why they should not be convicted of an offence. These submissions can be made without giving evidence. However, once you make these submissions you may not be allowed to call evidence on your behalf. If the Police case is weak, your solicitor may choose not to call you to give evidence. This decision is difficult to make and should be considered carefully.
The Defence Case
If you intend to give evidence, then you normally give evidence first. Your solicitor will ask you a series of questions so that you give all relevant evidence. Try to relax and give evidence as you remember the events. Remember, rehearsed evidence often sounds artificial, so try and be natural. If you are not represented by a solicitor take time after giving your version to consider any further evidence that you may have forgotten.
Being cross examined can be one of the most stressful experiences you can encounter. We have included a few tips that may make the experience less stressful.
Tips for surviving cross examination
- Keep your answers as short as possible. If you can answer a questions “yes” or “no” do so.
- Avoid arguments with the Prosecutor.
- Don’t try to exaggerate what occurred, this will often make your version unbelievable.
- Avoid making speeches.
- Avoid attacking the credit of the crown witnesses; leave this to your solicitor.
- If you are uncertain as to whether some event took place, it is alright to say “I cannot remember”.
- Before answering any question wait a short time before answering to allow your solicitor time to make an objection, if required.
- If you become anxious, it is alright to ask for a drink of water or a short adjournment so you can compose yourself.
- If you do not understand a question ask the Prosecutor to repeat it.
After all witnesses you intend to call have given evidence, you or your solicitor will make submissions after the Police Prosecutor upon the evidence given.
The Magistrate will make their decision on the evidence given and will normally make a decision shortly after submissions are given by both parties. The Magistrate will find you either guilty or not guilty. If you are found not guilty you may be able to claim your legal costs in some limited cases. If you are found guilty then you will be sentenced.
Plea of not guilty in Local Court
Sequence of Events:
- First Court Appearance (generally 4 weeks after arrest)– The court will order the police to serve the brief of evidence on you or your solicitor.
- Conference with your solicitor to discuss the brief of evidence – (generally 4 weeks after first Court Appearance)
- Second Court Appearance (generally 6 weeks after first court appearance) – You or your sollicitor confirms after looking at the brief of evidence that you are not guilty
- Third Court Appearance (generally 2 to 3 months after the second court appearance) – The Hearing of your matter
The Magistrate will consider the facts presented by the Police and the submissions made by you or your solicitor when deciding the appropriate penalty to be imposed. The Magistrate may decide to deal with your matter immediately or may want to adjourn your matter for a Pre-Sentence report or to refer you to a traffic offender program.
These reports are prepared by an officer of the Probation & Parole service. Matters are normally adjourned for 6 weeks for a full pre sentence report or for a few hours for an oral pre sentence report. The officer from Probation & Parole will interview you and from this interview they will prepare a report that includes your comments about why you committed the offence and your background. It is important that you co-operate fully with the officer as the officer will make recommendations as to an appropriate sentence in their report.
The Courts in New South Wales can impose the following penalties:
- Section 10
- Discharge Without Conviction (Commonwealth Offences only)
- Restitution Orders (Commonwealth Offences only)
- Recognizance Orders (Commonwealth Offences only)
- Good Behaviour Bond
- Community Service Order (CSO)
- Periodic Detention
- Home Detention
- Suspended Sentence
- Deferral of Sentence