Summary matters in the Local Court - what's the process?
So you or a friend or family member has been charged with an offence – where to from here?
The first step is the most important – get legal advice from an experienced criminal lawyer. This isn’t self-serving for us lawyers – I promise! There are a lot of things to consider and take into account before making any decisions about what you will do. Every case is different and the advice you are given will take into account a lot of different factors. An experienced criminal lawyer will also outline your rights and responsibilities about the police investigation.
Court Attendance Notice
There are generally three ways you can be required to attend court:
You have been issued with a penalty notice and you have elected to go to court
Police have arrested and charged you with an offence, or
A Court Attendance Notice (CAN) has been sent in the mail to you or given to you in person or has been provided to your solicitor.
The CAN will have the following details on it:
The time and date you have to attend court
The location of the court you are to attend
Your personal details like, name, address, date of birth, gender
The prosecutor’s name and contact details
The offence provision that you have been charged with
A description of the offence that you have been charged with.At the first court date
The CAN will also include a paragraph at the end which says, “Information for the Defendant”. This is really important to take note of. In summary, it says:
You should obtain legal advice immediately about the CAN
On the first date that you have to attend Court, you should be in a position to tell the Court whether you wish to plead guilty or not guilty
If you have a physical impairment or need an interpreter that you should advise the Local Court that you have to attend as soon as possible
If you have been charged by police, the police officer responsible will make arrangements for an interpreter to go to court if you request
If you do not attend court you may be arrested or your matter might be dealt with in your absence.
The first court date is often referred to as the first “mention”. Mentions are court appearances for matters that are not going to be finalised that day.
If you have not been able to obtain legal advice before your first court appearance date, the court will ordinarily give you a couple of weeks to do that and adjourn your matter to another date.
If you have had legal advice, the court might ask you whether you are pleading guilty or not guilty to the offence that you have been charged with.
If you have already had legal advice and know that you are pleading guilty, you can (but don’t necessarily have to) have your matter finalised on that first day. Even if you decide to represent yourself, it is a good idea to have a chat with a criminal lawyer before hand so that you know whether there is a defence available to you, or what you should prepare and take with you to court if you are going to plea guilty.
If you are ready to finalise your matter on that first day, your lawyer will ask you to get together some character references so that the court has an idea about you as a person and can arrive at the most suitable sentence. If one of the penalties you are facing is a fine, it is a good idea to have some evidence of your financial position so that the court can consider your capacity to pay.
At the sentence, the court will hear submissions either from your lawyer or from you if you are representing yourself. The magistrate will also hear submissions from the prosecutor.
The magistrate will then consider the appropriate penalty and sentence you.
Pleading not guilty
If you plead not guilty, a brief of evidence has to be prepared by the prosecution. In some matters, the prosecution has a period of time to prepare the brief of evidence and provide it to you.
After you receive the brief, you will have to come back to court on another date. In the time between receiving the brief and the next date, you and your lawyer have to consider the evidence the prosecution has. Your lawyer will give you advice about the evidence and you will have to make a decision whether you still want to plead not guilty or whether you will plead guilty to the offence. At the next court date, if you are still pleading not guilty, the court will fix a date for hearing.
In other matters, the hearing date is set at the first mention and the police have until two weeks before the hearing to serve the brief of evidence on you.
At the hearing
On the hearing date, the prosecution will have the witnesses required for cross-examination present at court to give evidence. Your lawyer, or yourself if you are representing yourself, will have the opportunity to cross-examine each of the witnesses.
After all of the prosecution witnesses have given evidence, it will be the defence’s turn. The defence does not have to call any witnesses, because it is up to the prosecution to prove their case, but in some cases, there will be defence witnesses. This may also include yourself as the defendant.
Once all of the evidence is heard, the magistrate will hear submissions from the prosecution and defence and then will make a decision about whether you are guilty or not guilty.
If you are found not guilty, that is the end of the matter. If you are found guilty, your matter will then proceed to sentence.
Navigating the court process is not always easy or straight forward. Let us know if we can help you.