COURT SUPPORT INFORMATION. Resource developed by: Community Restorative Centre

Transcription

1 COURT SUPPORT INFORMATION Resource developed by: Community Restorative Centre

2 This material was produced for the use by the Court Support Volunteers program. It is an extract form the Court Support Training Manual. It is not to be used in any way as a source of legal advice. CRC accepts no responsibility for the accuracy of information contained in this publication. To the best of our knowledge the information contained herein is correct as of October, 2011 Community Restorative Centre, 2011 Reviewed October 2011 by Andrew Bide Solicitor Legal Aid NSW Phone (02) REFERENCES Reg Bartley - The Court Is Open Redfern Legal Centre - Law Handbook Margaret White - Law For Social Worker Tim Anderson & Gaby Carney - Defend Yourself In Court The Centre for Volunteering All material is the property of CRC and should not be reproduced without permission.

3 CONTENTS Table of Contents The Legal System...1 Court Staff...7 Court Procedures...11 Court Directory...22 Resources...25 Glossary...26 All material is the property of CRC and should not be reproduced without permission.

4 THE LEGAL SYSTEM How Laws are Made Australian laws and the Australian court system came to us from England. When the English came to Australia in 1788, they declared the land to be terra nullius (vacant land). This theory was not disproved until the Mabo decision was handed down in Because the land was declared to be vacant, it was a land without ownership or laws, so they brought their laws with them to govern the new colony. Over the years this has changed through custom and precedent until the law as we know it today evolved. In 1986 Australian law became totally independent of British law. No longer is our highest court of appeal the Privy Council in England: it is now our own High Court of Australia. We have two methods of creating law in Australia: 1. Statute law (or legislation) which is law made by Parliament, and 2. Common law (or case law) which is law made by Judges. Where there is no legislation, court cases are usually decided using previous cases which had similar facts. Judges are bound to decide each case along the lines of similar cases. This doctrine is known as the doctrine of precedent i.e. a Judge must follow preceding decisions of a higher court. After a number of similar cases have been decided in a particular way, it is possible to see how the courts view certain acts, i.e. what is legal and what is illegal. In this way, a body of law is created. A Judge cannot ignore or change legislation; however they may interpret legislation passed by Parliament and apply it to real-life situations, where legislation is open to interpretation. (The Australian Constitution gives the Commonwealth Parliament the power to enact legislation about certain types of matters (e.g. marriage, telecommunications, foreign affairs) and State Parliaments have responsibility for the rest. In practice, most criminal law is covered by state law and family law is covered by federal law; civil law is a mixture of both.) Criminal Law and Civil Law An important distinction in law is between criminal law and civil law. Criminal Law Generally cases in which the State (sometimes referred to as the Crown) is involved, as opposed to actions between one person and another. Usually prosecuted by the police, the Director of Public Prosecutions or some other government body, eg. a local council. May result in penalties such as fines, good behaviour bonds and imprisonment. Offences are crimes such; as stealing and murder, and include breaches of government legislation, such as failing to lodge a tax return, polluting activities and not paying train fares. Guilt must be proved by the prosecution (as opposed to innocence being proved by the accused) beyond reasonable doubt, which is a higher standard of proof than that required for civil law. The person prosecuted is called the defendant or the accused. Civil Law Civil law is non-criminal. Civil cases usually involve private parties or corporations taking legal action against other private parties and often result in orders to pay compensation (damages). The person bringing the case is usually called the plaintiff (or sometimes the applicant or complainant). The person who has a civil case brought against them is called the defendant or the respondent. The plaintiff must prove that his/her version of the facts is more probable than the defendant s on the balance of probabilities. This is a lower standard of proof than that required in criminal law hearings. All material is the property of CRC and should not be reproduced without permission. PAGE 1

5 A number of different areas of law fall under the heading civil, e.g. tort, family, contract and administrative law. Apprehended Violence Orders (AVOs) are civil procedures and provide protection in the future by stating the defendant is not allowed to do certain things, otherwise the defendant may be subjected to a criminal charge. An order alone does not give the person a criminal record, but breaching the order is a criminal offence. Basic Principles of Criminal Law Presumed innocent until proven guilty. Proof beyond reasonable doubt. The prosecution must satisfy the Magistrate that the accused person is guilty beyond reasonable doubt. If there is any reasonable doubt about whether the accused is guilty, they should be acquitted (i.e. found to be not guilty of the offence). The right to remain silent - a suspect is not required to answer any questions put by a Police officer, except in certain limited situations. That a person chooses to remain silent cannot be used as evidence of their supposed guilt (Evidence Act s.89). Nor is the accused person required to give evidence in court. Double Jeopardy if a person has been tried and acquitted of an offence, they cannot be tried again on the same charge unless fresh evidence arises. The primary role of a State court is to deal with State law. There are three tiers in the general court system in NSW : the first tier comprises the Local Court, the second or intermediate tier is the District Court and the third or highest tier is comprised of the Supreme Court. There are other tribunals and courts in NSW that deal with special categories of disputes including the: Industrial Relations Commission Land and Environment Court Compensation Court Drug Court Children s Court Coroner s Court Dust Diseases Tribunal Administrative Decisions Tribunal Consumer, Trader and Tenancy Tribunal - formerly the Fair Trading Tribunal and the Residential Tribunal Victims Compensation Tribunal 13 Most courts in Australia handle civil and criminal cases. There are also tribunals and commissions which decide other matters involving disputes in areas such as industrial awards, workers compensation and local government. The courts and tribunals are usually open to the public, although some may restrict access, such as the Children s court where the child, the child s parents and any legal representatives may be the only people allowed in court. State Courts Local Court Local Court (also called Magistrate s Court in other states): Bottom level of court hierarchy in NSW Magistrates decide cases in Local Courts. There are no juries. These courts deal with civil cases involving, for example, debts and contracts, where the amount of money claimed is less than $100,000 (Small Claims up to $10,000, General Division $100,000). Deal with criminal matters; summary offences and indictable offences heard summarily (including; larceny, false pretences, obtaining credit by fraud, malicious wounding). In more serious criminal cases, the Magistrate will hold a preliminary (committal) hearing to decide whether or not there is enough evidence to send the accused person to a higher court for trial. Cap on custodial sentences of a maximum of two years for one offence and five years for more than one offence. Defendants have an automatic right of appeal to the District Court against either a Magistrates finding of guilty and / or the severity of a sentence imposed. Other courts operating at this level of the hierarchy include Coroner s, Children s, and Licensing Courts - Magistrates decide cases in these courts also. Local Courts also deal with a limited range of Family Law matters even though Family Law matters are covered by Federal Law. All material is the property of CRC and should not be reproduced without permission. PAGE 2

6 District Court Intermediate court in the hierarchy of the NSW court system. Judge and Jury or Judge only. District Courts hear appeals from decisions of Magistrates in most criminal matters from Local to Children s Court against a finding of guilt or severity of the penalty imposed. They decide civil cases where the amount claimed is not more than $750,000 but parties may both consent to the Court dealing with claims for a higher amount. Hears trials, sentencing matters, and appeals against decisions made in the Local Court for criminal offences (civil appeals go straight to the Supreme Court and only on an issue of law). Functions as both a court of first instance and an appeal court. Maximum penalties limited by the maximum penalty set for the specific offence. Supreme Court The Supreme Court is the highest State court. It decides civil and criminal matters. Appeals from the Local and District Courts are also made to this court, on an issue of law only. An appeal from a single Judge of the Supreme Court may be made to a threemember Court of Appeal. In criminal cases, appeals may be brought from the Supreme Court (and the District Court) to the Court of Criminal Appeal. The Supreme Court s decisions are binding on the lower courts. The Supreme Court has unlimited civil jurisdiction - This power means that these cases go straight to the Supreme Court, regardless of the amount of money involved. Some NSW courts have a status equal to the Supreme Court, for example, the Land and Environment Court. Deals with serious criminal and civil matters (unlimited civil jurisdiction). Maximum penalties limited by the maximum penalty set for the specific offence. Court of Criminal Appeal Appellate jurisdiction of Supreme Court Two or three Supreme Court Judges. Hears appeals against sentence and conviction from a District and Supreme Court. Commonwealth Courts Federal Court of Australia The Federal Court s business includes interstate industrial disputes, actions under the Trade Practices Act (Commonwealth), bankruptcy matters and judicial review of decisions made by Commonwealth government officers. Appeals from the Federal Court can be made to the full Federal Court (i.e. three Federal Court judges) and in special circumstances, from there to the High Court. Same level as the Family Court. Family Court of Australia The Family Court deals with cases under the Family Law Act. Appeals can be made to the full Family Court and in special circumstances, to the High Court. Same level as the Federal Court. Federal Magistrates Court deals with less complex Family Law cases and other Federal mattes such as taxation. The High Court of Australia 7 judges. The High Court is the final court of appeal in Australia, therefore there is no appeal against a High Court decision. Appeals may be made to it from State Supreme Courts as well as from Commonwealth courts. Constitutional matters are heard directly by the High Court, which sits permanently in Canberra. The High Court s decisions are binding on all States, so a decision on a case appealed from a NSW Supreme Court to the High Court will (usually) result in a decision by the High Court that is binding on all other State courts. Influential in providing definitive All material is the property of CRC and should not be reproduced without permission. PAGE 3

7 interpretations of legislation, setting the seal on the common law in a particular area, and the evolving interpretation of the Commonwealth Constitution. Functions as an appellate court only. Commonwealth Tribunals National native Title Tribunal Trade Practices Tribunal Copyright Tribunal Administrative Appeals Tribunal Immigration Review Tribunal Refugee Review Tribunal Unrepresented Defendants Advise all unrepresented defendants to seek legal advice. The law on any particular issue can often be complex and difficult and individuals should always obtain advice from a lawyer about the action they propose to take before they take it. Tribunals There are a large number of State and Commonwealth tribunals which operate outside the court system but which are supervised by the courts. In NSW, there are more tribunals than there are courts and it is quite possible that a person s contact with the legal system will involve tribunal proceedings rather than court proceedings. Tribunals are created by Acts of Parliament to deal with particular areas of practice. They are designed to provide a method of resolving disputes which is easier, cheaper, faster and more expert than courts. However, some tribunals are more formal than others and do still involve legal representation and lengthy cases. State Tribunals Consumer Trading and Tenancy Tribunal Administrative Decisions Tribunal Equal Opportunity Tribunal Victims Compensation Tribunal Guardianship Tribunal Mental Health Review Tribunal If a defendant is unsure how to plead, advise the defendant to seek legal advice. If the defendant is pleading not guilty, strongly urge the defendant to seek legal representation. If the defendant is not going to seek legal representation suggest that they seek an adjournment to prepare (if matter is listed for hearing, it is very difficult to have the matter adjourned). They may like to sit in on a hearing to familiarize them with the prosecution process. Advise the defendant where to stand and to address the court in a clear and audible manner. If the defendant is considering pleading guilty, again strongly urge them to seek legal advice before they do. Complex legal issues are involved in a question of guilt and the defendant should not assume they are guilty because someone has told them they are guilty, or because they confessed to the police. Advise the client that a criminal record may last for life and can work against them forever. Their job (public service, security guard, holding of public office (JP), childrelated employment or local council) may be conditional upon lack of criminal record. All material is the property of CRC and should not be reproduced without permission. PAGE 4

8 The key message is... advise defendants that legal advice is available to them and urge them to seek it. Pleading Guilty on a Criminal Charge If a client decides that they will represent themselves on a guilty plea they should be sure to take the following steps: The court staff will show them the police statement of facts to check that they agree to the facts as the police have described them. If they do not agree with the statement, they should tell the Magistrate what matters are not correct. They should check the police details of their criminal record, if they have one. Again they should tell the Magistrate if the details are not correct. They should be made aware that they can apply to the court for an adjournment to another date to seek legal advice or representation. They should be prepared to give the Magistrate full details of: Their age and financial circumstances. Their current occupation. An explanation of how they came to commit the offence. Any medical information, psychiatric or psychological that is relevant to their circumstances. This should be supported by a letter from their doctor, psychiatrist, or other appropriate professional. Reasons for needing their driving license if they are in danger of losing it. people who know them to give the Magistrate some knowledge of their character. It is also important to collect these references if they are pleading not guilty as the Magistrate will take these into account before deciding on a sentence if the client is found guilty. References should be from people that the Magistrate would consider respectable members of the community, such as teacher, minister of religion, sports coach or community worker. References should be addressed to the court and the referee should state how long they have known the client, how they have known them (e.g. old family friend or teacher), that they know that they have been charged with a particular offence, what their opinion of the client s character is, and what factors the court should take into account when considering the penalty. It is important to get references specifically for the hearing and the client should not rely on references that have been given for other purposes. E.g. for previous job applications etc. Remind all clients to keep copies of references. They should have character references ready. If charged with a criminal offence and pleading guilty, the client should collect references from All material is the property of CRC and should not be reproduced without permission. PAGE 5

9 INFORMATION ON PLEADING GUILTY A CHECKLIST Checklist of matters which the Magistrate should be made aware of in respect of unrepresented defendants on guilty pleas, in relation to sentencing: 1. Employment status and income. 2. Family situation Accommodation. 3. Reasons for committing the offence and any particular problems they have which may be contributed to why the offence was committed, including mental and physical health. 4. Any remorse they feel for having committed the offence. 5. Specific reasons why they have a record for similar offences if that is the case. 6. How a fine or gaol sentence or conviction would affect their life. 7. Any steps taken to undo the harm done by their commission of the offence. 8. Character References and/or court reports. REMEMBER! You cannot advise a defendant how to plead. If he or she is undecided, you should advise them to seek legal advice before entering a plea. This will usually require an adjournmernt. All material is the property of CRC and should not be reproduced without permission. PAGE 6

10 COURT STAFF The Magistrate The Magistrate is a legally qualified person who presides over the Local Court, and will decide the outcome of the matter before the court. They work without a jury, and are therefore responsible not only for determining the outcome of the case but also the penalty to be imposed if an accused person is found guilty. They may also ask questions of any witness if they find it necessary. The Magistrate decides what will happen in your case. The Magistrate may: Adjourn the case to another day and, if need be, to another court. Decide bail applications and conduct preliminary hearings. Hear civil and criminal cases and decide each case on the evidence produced by the parties. If a plea of guilty is entered in a criminal case, or if the defendant is found guilty, decide the penalty there and then, or on another day. If the parties come to an agreement in a civil case, make the order agreed to. Deal with a limited range of family law cases, as long as all parties agree to the matter being dealt with by the Local Court instead of the Family Court. not sit in the court room. They have an office at the Local Court (known as chambers) and provide free legal information to anyone who needs help with their court appearance. This may include advising you of the law in a particular matter; what the possible punishments are for the offence you have been charged with; or helping you fill out certain forms. It is important to remember that the role of the Chamber Registrar is different to that of a solicitor. The Chamber Registrar will listen to your problem and tell you what the legal situation is and may even indicate your chances of success if you take legal proceedings. On the other hand, the Chamber Registrar will not advise you what to do. They will tell you the things you need to know to make a decision, and may advise you on possible courses of action, legal or otherwise, but they will also insist that the decision be yours. Should you wish to take legal proceedings in a Local Court, the Chamber Registrar will help you initiate those proceedings and tell you how to carry out the steps to begin them. In most cases they will also help you to prepare documents. In a civil case the Magistrate will decide whether the person bringing the case against you has proved their case on the balance of probabilities. Criminal cases must be proved beyond reasonable doubt. The Magistrate will be referred to as your honour. Note that the old term your worship is no longer used. The Chamber Registrar The Chamber Registrar used to be known as the Chamber Magistrate. The Chamber Registrar is a legally qualified person but does It is important to warn the clients that as a rule, chamber registrars operate on a first come, first served basis, and only see a certain number of people each day. They will probably need to be there early to get in to see the Chamber Registrar, but it will be worth their while doing so, particularly if they intend to go into court unrepresented. Some courts require a person to make an appointment in advance to see the Chamber Registrar. The Registrar This role will often be filled by the Chamber Registrar, usually in smaller courts. They All material is the property of CRC and should not be reproduced without permission. PAGE 7

11 are responsible for signing court notices and documents such as summonses. They will also be responsible for accepting installment payments on fines and debts. They are also responsible for the day to day administration of the Local Court. Registrars are responsible for compiling the court lists for each day, and generally know what is happening in all sections of the court. They can be contacted if there is a question relating to an administrative matter. Registrars may also conduct call-overs, especially in larger court complexes. This means sitting in court as a Magistrate would, and dealing with mentions, adjournment applications, etc. A Registrar has power to adjourn cases, make orders for briefs and other documents to be served, and to vary accused persons bail conditions if the prosecution consents. However, a Registrar does not have power to determine guilt or innocence, to impose penalties, to commit someone for trial or sentence, or to deal with contested applications. It is the Registrar we go through to arrange for our participation within the courthouse. Court Officer The Court Officer is the person who controls the courtroom while it is in session. They call people when it is time for their case to be heard, they tell people where to stand in the courtroom, they administer the oath or affirmation to witnesses when required and pass any material to the Magistrate or the solicitors. Under some circumstances the Court Officer can be approached to stand a matter down until later in the day, or to bring it forward. This is only done for a very good reason, and should under no circumstances be abused or expected. Counter Staff The counter staff are usually very busy dealing with enquiries and preparing documents for the court. They have access to the court files and computer systems. Court Monitor The court monitor is responsible for taperecording the proceedings in court. It is important for participants in court proceedings to know that the microphones in the court are for recording purposes only and are not for amplification (so speak up!). Duty Solicitor and Legal Aid Solicitor These solicitors operate in different ways in each court. The best way of handling this is to ask them how you can best help them in your particular court. In Local and Children s Courts throughout NSW, the Legal Aid NSW provides duty solicitors at court on every criminal list day. In some courts these solicitors are employees of the Legal Aid NSW; in other courts they are private lawyers on a roster, paid for the day by the Legal Aid NSW. Duty solicitors are available to give legal advice and representation to eligible clients. For criminal matters in the Local Court, eligibility for Legal Aid of the clients is based on means and on the type of matter. For example, Legal Aid is not usually available for traffic matters, unless the defendant stands a real chance of being imprisoned. If a person is ineligible for Legal Aid representation, they may still be able to get some free legal advice from the duty solicitor. For criminal matters in the Children s Court, Legal Aid is available to all young people, regardless of means or type of matter. For District and Supreme Court matters, Legal Aid must be applied for in advance; there is no duty solicitor system at these courts. At some courts, Legal Aid provides Duty solicitors for family law matters. They do not provide duty solicitors for civil matters; Legal Aid availability for civil cases is very limited. All material is the property of CRC and should not be reproduced without permission. PAGE 8

12 the defendant is pleading not guilty) the defendant may be required to pay a contribution (usually $75) toward their Legal Aid representation. This contribution can be waived if the client genuinely cannot afford to pay. More information about Legal Aid eligibility can be found on the Legal Aid website - (www. legalaid.nsw.gov.au). Although Court Support workers should be familiar with Legal Aid guidelines, it is not up to you to decide or speculate as to the eligibility or otherwise of a client for Legal Aid. If your client has not had the opportunity to apply for Legal Aid, the Duty Solicitor can give advice about making an application. If your client is held in police custody and is making a first bail application, the Duty Solicitor can represent them. Legal Aid solicitors are usually very experienced within the setting of the Local Court. They see numerous clients every day, and will have had experience with almost anything that goes before the Local Court. They will act on behalf of the client to ensure the best possible defence is presented to the court. The Aboriginal Legal Service (ALS) also provides lawyers to represent indigenous clients free of charge in most courts. At busier courts, there is often an ALS solicitor there every day; at other courts, there are designated ALS days. Note that in some courts there may be alternative sources of free legal representation (see pro bono solicitor) below. Lawyers Any person appearing before the Court the is entitled to seek advice and representation from a lawyer. Where Legal Aid (or another free service such as ALS) is not an option for your client, a private solicitor or barrister may be of use. It needs to be understood, however, that this can be a costly exercise. It is the role of the solicitor to act on behalf of the client, following their instructions. The term lawyer refers to both barristers and solicitors. Solicitors are the lawyers who people deal with most. They represent people in all sorts of court matters, but will usually brief a Barrister to represent clients in serious or complex District Court, Supreme Court, and many Family Court matters. Solicitors also provide legal advice and draft legal documents. Barristers are lawyers who specialise in courtroom advocacy and usually specialise in particular areas of law. They are not necessarily senior to or better than solicitors. Solicitors often brief barristers to represent their clients in court or to give them advice about the law in a particular case. Traditionally, clients could only access barristers via a solicitor (similar to getting a referral to a specialist from your GP), but now many barristers take on direct access clients without the involvement of a solicitor. Pro Bono Solicitor Pro Bono solicitors can take up the slack for people who do not qualify for Legal Aid, but cannot afford a private solicitor. The catch is that they do not work from all courts. Please find out if they operate from your court, and if so what their roster is. The Pro Bono scheme is coordinated by the Law Society of New South Wales (or, in some courts, the Bar Association); a phone call to them will tell you if their scheme operates at your court. These lawyers will sometimes act pro bono (for no fee), or will negotiate a small fee. Make sure you are aware of the fees charged for the services they offer and please ensure your client understands the system before you refer them to this scheme. Prosecutor Depending on the nature of the case, the prosecutor will be either from the NSW All material is the property of CRC and should not be reproduced without permission. PAGE 9

13 Police or the Office of the Director of Public Prosecutions (DPP). The police prosecutor will appear on behalf of the informant (usually the police) in criminal matters before the Local Court. They may also appear on behalf of the applicant victim in an application for an apprehended domestic violence order, or for statutory bodies such as the Water Board, the RailCorp or National Parks and Wildlife. They are police officers (usually sergeants) who in most cases have legal training. More serious cases are handled by solicitors from the DPP, who conduct committal proceedings and will carry the matter through to the District or Supreme Court if the defendant is committed for trial or sentence. Probation and Parole The Probation and Parole Service is a division of the Department of Corrective Services. It is their responsibility to assist the court to determine the appropriate punishment for people found guilty of offences (if requested to do so by the Magistrate). They do this through the preparation of presentence reports, which investigate the background and the current circumstances of the person. They will also make determinations on the suitability of the client for the range of sentences available to the court. It is the Probation and Parole Service s policy to place court duty officers in major court complexes. Their responsibilities are to: Assist the court by making immediate specific enquiries concerning the background or situation of an offender appearing before the court. Assist the court by making a general assessment of the suitability of one or more sentencing options for the particular offender. Confirm, by way of interview of the offender and appropriate enquiries, the need for the matter to be adjourned for a period so that a full pre-sentence report may be prepared. Present pre-sentence reports to the court prepared by other officers of the Service where the presence of these other officers in the court is not warranted. In some cases, make such enquiries as will confirm for the court the suitability of the offender for release on bail. In the Children s Court, a similar role is fulfilled by officers from the Department of Juvenile Justice. At some Children s Courts there is a DJJ duty officer present every day. Probation and Parole (and Juvenile Justice) officers are also responsible for supervising offenders on good behaviour bonds, community service orders and parole. All material is the property of CRC and should not be reproduced without permission. PAGE 10

14 COURT PROCEDURE Commencing A Criminal Prosecution As a general rule, the criminal prosecution process begins when a person lays what is called an information before a court, or a Justice of the Peace. An information is a written allegation that a particular person committed a crime. The term comes from England where, before the existence of a police force, the government paid informers in order to apprehend and convict those who committed criminal offences. The person who commences a prosecution is called the informant or the prosecutor. Any person can commence a prosecution, but in most cases this is done by a police officer or by an officer of a statutory body such as RailCorp, WorkCover, etc. Court Attendance Notice In practice, laying an information will be done by issuing a court attendance notice (CAN), which will tell the alleged offender what he or she is charged with and when and where to attend court. A police officer or public officer may issue and serve a court attendance notice on a defendant without first obtaining authority from the Court. The court attendance notice is to be filed at the court registry within seven days of service. Where a private individual wishes to commence criminal proceedings (this is very rare), the registrar may issue the court attendance notice. In most cases the accused person will be allowed to remain at liberty (either on bail or unconditionally) until the court date; in more serious cases, bail may be refused and the accused person remanded in custody. Failing to attend court in answer to a Court Attendance Notice can result in the court dealing with the matter in a person s absence, and/or a warrant being issued. Infringement Notice A large number of minor offences are dealt with by the use of infringement notices, such as parking or speeding tickets, as they are known. The notice specifies the alleged offence and the amount of the fine to be paid. In most cases, payment of the fine amounts to an admission of guilt. Rather than pay the fine, a person may choose to contest the matter in court. In that case, the prosecution will take place in the normal manner. Bail For more minor offences, police will issue a no bail, field or future court attendance notice (CAN), which means the accused is at liberty until their court date, with no conditions attached. People who are arrested on more serious charges (or who have a criminal history) will usually receive a bail CAN, which means that police must decide whether or not to release the accused on bail. Bail is an agreement signed by the accused to appear in court on a specified date and to abide by any conditions that are set. Conditional bail may require the involvement of a surety or acceptable person (a person who says they know the defendant and that they are responsible and likely to appear in court), who may be required to agree to forfeit a sum of money in the event of the accused s non-appearance at court. Sometimes this money must be deposited upfront; in other cases the surety must satisfy the court that he or she has access to the money. Other types of bail conditions include residing at a particular address, reporting to a police station on certain days of the week, curfews, prohibitions on associating with co-accused or contacting prosecution witnesses, or participating in rehabilitation programs. Police may grant bail, in which case the accused person is released and is free until their court date. If police refuse bail, the All material is the property of CRC and should not be reproduced without permission. PAGE 11

15 accused must be taken to court immediately (in practice this usually means the following day) where he or she will have the opportunity to apply for bail. For person arrested during the weekend, bail courts sit on Saturdays and Sundays at some locations (e.g. Parramatta). In granting bail the court or police will be guided by the following criteria: The likelihood of the accused appearing in court. In assessing this the court may have regard to the accused s criminal history and in particular any previous failure to appear when on bail; the strength of the prosecution case and the severity of the sentence if found guilty (to the extent that this may provide an incentive for the accused to flee); and the accused s community ties (e.g. housing, employment, family). The protection and welfare of the community and of any victims or witnesses in the case. The seriousness and nature (e.g. violent) of the alleged offence will usually be relevant here. The interests of the accused person, including their need to be at liberty to better prepare their case. In some cases there is an initial presumption in favour of granting bail, which means that bail should be granted unless there is a good reason not to. In an increasing range of situations, there is no presumption in favour of bail, or even a presumption against bail, which makes bail very difficult to get. Bail may be granted or varied at any stage of the criminal proceedings and there is no limit to the number of applications a person may make for bail (except in the Supreme Court see below). When a case is adjourned, bail is usually continued on the same conditions, or the conditions may be varied. If bail is refused in the Local, Children s or District Court, the accused may apply for bail to the Supreme Court. An accused can only make one Supreme Court bail application unless he or she can show special facts or circumstances. If a person has been refused bail, the time spent in custody will be taken into account in determining their sentence if they are then found guilty. If a person is found not guilty, there is no compensation granted for the time spent on remand, unless the person can demonstrate that they were unlawfully imprisoned or maliciously prosecuted. Failure to appear at court in response to a bail undertaking bail can lead to serious consequences, including: being convicted in your absence a warrant being issued for your arrest you or any surety being required to forfeit money being charged with the additional offence of fail to appear. An accused person who breaches bail conditions (e.g. by failing to report to police) may be arrested immediately by police and brought to court to reconsider whether bail should be continued or revoked. This usually means a night in custody before court, and possibly a longer period in custody if the court decides to revoke bail. Court Procedures Difference between Summary and Indictable Offences. Summary offences are relatively minor offences that are dealt with by a Magistrate in a Local or Children s Court without a jury. Summary offences include matters such as offensive conduct, trespassing, goods in custody, drug possession, and most traffic offences. Indictable offences are those that are traditionally dealt with on indictment, which means the person has a right to trial by jury in the District or Supreme Court. All material is the property of CRC and should not be reproduced without permission. PAGE 12

16 Some offences are strictly indictable, which means that they must go to the District or Supreme Court (usually after going through committal proceedings in the Local or Children s Court). Examples of strictly indictable offences are murder, most types of robberies and sexual assaults, and serious drug supply offences. Many indictable offences are dealt with summarily, which means they are finalised in the Local or Children s Court. Table 1 offences (e.g. break enter and steal, malicious wounding) are dealt with summarily unless the prosecution or defendant elects to have it dealt with on indictment. For Table 2 offences (e.g. common assault, stealing property worth less than $5,000) only the prosecution has the right of election. For Children s Court matters, the procedure is slightly different for example, some offences that would be strictly indictable for adults (e.g. robbery) may be finalized by the Children s Court. Also, for Table 1 and 2 offences, the prosecution cannot elect to have the matter dealt with on indictment; this decision is made by the Magistrate. It would be rare for a defendant to elect to have matter dealt with on indictment. Although many people think that the chances of an acquittal may be higher before a jury than before a Magistrate, potential downsides are: If the accused is convicted by a Magistrate, they have an automatic right of appeal to the District Court. If convicted by a jury, they may only appeal if there has been an error of law by the Judge. The penalties available to a Magistrate are lower than those that a District or Supreme Court judge can impose. Procedure for Summary or Indictable Offences being Dealt with Summarily Guilty Plea If the accused pleads guilty, the Magistrate asks the prosecutor to hand up the police facts sheet (which outlines the facts of the case) and details of any prior convictions. The defendant or their lawyer may make submissions to the Magistrate for an appropriate penalty. This often includes tendering character references or reports, or occasionally calling witnesses, to testify as to the good character of the accused or to explain the circumstances of the offence. In some cases, usually the more serious ones, the Magistrate will seek a presentence report from Probation and Parole (for adults) or a background report from Juvenile Justice (for children) before deciding on a penalty. This usually requires a 6-week adjournment, unless there is a duty officer available to do the report. Not Guilty Plea If an accused person pleads not guilty, the matter will be adjourned for several weeks and the police will be ordered to serve a brief of evidence on the defendant or their lawyer. After the brief is received, if the defendant confirms their plea of not guilty, the matter will be adjourned to another date for hearing. The defence must file a listing advice indicating which witnesses they require for cross-examination. At the hearing, the Magistrate hears evidence from prosecution and defence witnesses. This will begin with the prosecutor calling witnesses for the prosecution. After giving their evidence in chief, these witnesses may be questioned (crossexamined) by the defence. When the case for the prosecution is complete, the Magistrate will decide whether there is a prima facie case, i.e. whether sufficient evidence has been presented in support of the charge. If there is a prima facie case, the defence All material is the property of CRC and should not be reproduced without permission. PAGE 13

17 will then present its case. This may include calling the defendant and/or other witnesses to give evidence to establish the defence to the charge. The defendant does not have to give evidence, and failure to give evidence cannot be taken as an admission of guilt. In practice, the defendant will usually choose to give evidence in order to present an alternative version of events to the Magistrate then considers all the evidence to decide whether the alleged offence has been proved beyond reasonable doubt. If the offence is so proved, the matter proceeds in a similar way to a guilty plea. The defendant is given an opportunity to make submissions, and the Magistrate then determines an appropriate penalty. Applications under Section 32 of the Mental Health (Forensic Provisions) Act 1990 Section 32 of the Mental Health (Forensic Provisions) Act gives Magistrates the option of dismissing charges against a person with a mental illness, mental condition or intellectual disability. In effect, this legislation provides a mechanism for the Local Court to deal with a defendant in a manner which will address his/her mental illness with a view to treating them rather than punishing them according to law. In making a section 32 application, the defendant s lawyer will hand up a psychiatric or psychological report, usually accompanied by a treatment case plan to attempt to satisfy the court that the person s mental condition is being treated or (in the case of a person with an intellectual disability) that they are receiving adequate support. If the Magistrate decides it is appropriate to deal with the defendant under section 32, he or she may dismiss the charges, usually with a condition requiring the defendant to stick to a case plan (which may include taking medication, attending regular counselling appointments, etc). A section 32 dismissal is not equivalent to a finding of guilt and no conviction is recorded; however, it is not equivalent to an acquittal either. If the defendant breaches the conditions of an s32 order within 6 months, he or she may be brought back to court to be dealt with again. Appeals from Local Court A person who is found guilty by a Magistrate may appeal to the District Court against that conviction and any sentence imposed (all-grounds appeal). A person may appeal against the sentence only (severity appeal). The appeal must be lodged at the Local Court which imposed the conviction or sentence, within 28 days (or within 3 months with the leave of the District Court). The appellant does not have to prove that the Magistrate made an error of law; the District Court Judge will look at the case afresh and make their own decision. In an all-grounds appeal, the Judge will usually make the decision based on a transcript of the hearing in the Local Court. New evidence may only be called, or witnesses required to give evidence again, with the leave of the court. With a severity appeal, the Judge will have access to all material that was available at the Local Court (facts sheet, reports, etc) plus any updated material the appellant may wish to tender. A warning: the Judge has power to increase the sentence as well as decrease it. However, the Judge will usually warn the appellant of any intention to do so, and give the appellant leave to withdraw the appeal. A person who believes a Magistrate has made an error of law may appeal to the Supreme Court on a point of law, instead of going to the District Court. For other Indictable Offences - Committal Proceedings When a person is charged with a strictly indictable offence, or where the prosecution or defendant has elected to have a Table 1 or 2 offence dealt with on indictment, the Local or Children s court first conducts All material is the property of CRC and should not be reproduced without permission. PAGE 14

18 committal proceedings. The purpose of committal proceedings is to determine if there is sufficient evidence to justify sending the accused to stand trial before a Judge and jury in the District or Supreme Court. Traditionally, committal proceedings involved a committal hearing where all prosecution witnesses gave evidence (and were crossexamined by the defence) at the Local or Children s Court. The defendant no longer has an automatic right to have a witnesses attend to give evidence and be cross-examined at committal. This will only be allowed if the defence can demonstrate special reasons (in the case of victims of violent offences) or substantial reasons (in the case of other witnesses) in the interests of justice. In practice, most committal proceedings involve a paper committal, where the Magistrate reads the brief of evidence (containing statements of all prosecution witnesses, and other evidence such as photos, video footage, etc). The defence may call witnesses and give evidence at committal, but this is very rare. If the Magistrate is satisfied that a reasonable jury, properly instructed, is reasonably likely to convict the defendant of an indictable offence, he or she will commit the accused for trial to the District or Supreme Court. If the Magistrate considers the prosecution evidence insufficient, the accused will be discharged, which usually means the charges are discontinued. However, a discharge at committal is not equivalent to an acquittal by a Judge and jury; in some cases the charge may be revived by way of ex officio indictment (see below). An accused person may plead guilty at the committal. If the Magistrate accepts the plea and is satisfied that there is a sufficient case against the accused, the accused will be committed to the District or Supreme Court for sentencing only. A person committed to stand trial may decide to plead guilty once the matter goes before a higher court. No jury is then required and the matter proceeds to sentencing. Trial by Jury Where a person committed for trial continues to plead not guilty, a jury trial (or occasionally, a trial by Judge alone) is held. The Crown Prosecutor presents an indictment, which is a statement of the charge or charges against the defendant. The prosecution is first to present its case, followed by the defence case. The procedure is fairly similar to a defended hearing in the Local or Children s Court. In a trial by Jury, decisions as to questions of fact are made by the jury. The Judge s role is to determine questions of law (including ruling on disputes about what evidence is to be presented to the Jury) and to advise the Jury as to matters of law. After all the evidence has been presented, the Judge sums up the case for the jury, which then retires to consider its verdict. If a not guilty verdict is returned, the defendant is acquitted. The principle of double jeopardy means that he or she cannot be tried for the same offence again (even if new evidence comes to light suggesting he or she may be guilty). Sentencing If a guilty verdict is returned (or if the defendant pleads guilty at any stage), the Judge proceeds to sentencing without a jury. Sentencing in the District Court is similar to sentencing in the Local or Children s Court, but usually takes longer because the court is dealing with more serious offences and potentially more severe penalties. No Bills After a person has been committed by a Magistrate to the Supreme or District Court on an indictable offence, a decision must still be made by the prosecution whether to continue with the proceedings for the offence charged. The Director of Public Prosecutions and the Attorney General both have power to decide that there should be no further proceedings taken against a person. This is called a decision to no bill. The reasons for the decision not to continue All material is the property of CRC and should not be reproduced without permission. PAGE 15

19 a prosecution can vary but matters taken into consideration include: The attitude of the victim to the continuation of the prosecution. The death or disappearance of key witnesses. Lack of evidence to support a conviction; The age or health of the accused or a witness. An application to the Director of Public Prosecutions for a no bill can be made by the defence or the Crown Prosecutor. Ex Officio Indictments Where a Magistrate has decided not to commit a person for trial, the Director of Public Prosecutions or the Attorney General can still proceed with the prosecution by filing an indictment which will commence proceedings in the Supreme or District Court. This is called an ex officio indictment. This procedure is not used very often, but may occur because new evidence has been discovered since the Magistrate held the committal hearing. Other Procedures Indemnities An indemnity is immunity against prosecution granted by the Attorney- General to a person who has participated in an offence. In exchange, the person granted an indemnity is required to give evidence against another accused person. Indemnities are only granted in exceptional cases and in recommending indemnity, the prosecution needs to consider amongst other things, how essential the evidence is to securing the conviction and whether the interests of justice can be served by the indemnity. Notification of the Requirement to Attend as a Witness Witnesses are notified of their required attendance at criminal proceedings by way of a subpoena. A subpoena is a document issued by the court giving particulars as to the place, date and time of the hearing. A police officer or public officer may issue a subpoena without the authority of the court registry. A Registrar may issue a subpoena at the request of any other party to proceedings. The subpoena may also indicate a requirement to produce documents that may be used as evidence in the case. Failure to attend court or to produce documents may result in a warrant being issued for the witness s arrest. Order of Matters to be Heard by the Court Usually matters are heard in the following sequence: Unopposed adjournments or matters for mention Short guilty pleas/bail applications/ contested adjournment applications Lengthy guilty pleas/sentencing/ applications under Mental Health (Criminal Procedure) Act Defended hearings - Order of priority: a. Matters where defendant is in custody b. Old cases that were part-heard or not reached on a previous date c. Other matters where the person is not in custody. Sentencing How is a Penalty Determined? When deciding how to sentence an individual offender, the Magistrate must consider and balance a number of competing factors including: The protection of the community. The need to deter the offender and others from committing similar offences in the future. The need to impose punishment and to show the community s disapproval of criminal conduct. The importance of helping the offender achieve rehabilitation, especially for young offenders. All material is the property of CRC and should not be reproduced without permission. PAGE 16