Chapters

Step One:  The Complaint and Getting the Court Date

Persons who are charged with offences are called defendants. Defendants appear in court as the result of answering a summons, answering bail or being remanded in custody and being brought before a court. The initial process is as follows:

  • A summons is sent to the person at their last known address – for example, if a person is called to appear for a relatively minor charge, they will be asked to provide their address, and sent a letter giving them a court date and time for appearance to answer the complaint/charge against them.
  • The person will have been released on bail (this is usually for a more serious offence), and a date and time for appearance before the court will be provided to them.
  • The person will have been remanded in custody (for the most serious offences or for people who have previously breached bail), and a date and time for appearance before the court will be provided to them.

The time period that elapses from the date of the charge or complaint to the date of the first appearance will vary. Where a person is remanded in custody the time period will be shorter. During that time, the detained person can apply for bail at any time. Any person granted police or court bail can apply (at any time) to the court for a variation of that bail.

Getting Bail
 

If a person is being held in custody they have the right to make a bail application. See the section above on ‘Bail’. A Duty Solicitor may assist them.

Before the case comes up

It is a good idea, if there is time, for a defendant to go down and sit in on a session at the Magistrates Court. A person can find out from court staff if there are any cases coming on that are similar to theirs and go and sit in the back of the court and watch what happens.

If the person wants to plead ‘guilty’ but wants to know the best way to go about it, they can sit in on some cases where the defendant is pleading guilty and see what sort of things they present as ‘pleas of mitigation’. This is important when preparing their case (see below).

If they want to plead ‘not guilty’ they can sit in on a defended hearing. They will see how the prosecutor and the defendant or their lawyer asks questions of witnesses. They will also get an idea of the role of the magistrate in such a situation and the way that the case is run.

 

Step Two: Disclosure

Obtaining Preliminary Disclosure

Disclosure is where the prosecution or police give documents or information on evidence to the defendant. With self-representation it is important to get preliminary disclosure. Preliminary disclosure involves no fee, but you must write to the police to obtain disclosure. Preliminary disclosure requests should ask for:

  • The complaint;
  • Facts for the prosecutor;
  • Relevant prior convictions;
  • Statements made by the defendant (sometimes in electronic format, such as a DVD or sound recording)

This information will give the defendant information on the nature of the complaint made against them. A defendant should draft a letter that is polite and provides their full name, their date of birth, the complaint number and a return address to which the Disclosure Officer can send documents. There is no fee associated with initial disclosure.

Obtaining Full Disclosure

If a defendant intends to plead not guilty, it is wise to obtain full disclosure from the police. In a request for full disclosure the defendant should ask for:

  • The full police brief of the case
  • Witness statements
  • Witness proofs – such as documents
  • Police reports
  • Police statements
  • Police proofs – such as documents (but not photographs)

Full disclosure carries a fee of $53.90. This is liable to change without notice. Again, include your full name, a return address, your date of birth, and the complaint number. If you decide to have legal aid at some point along your trial, Legal Aid can obtain full disclosure without a fee.

Who to contact

Document Disclosure Officer
Southern Regional Prosecution Services
Level 3M
43 Liverpool Street
Hobart, Tasmania 7000

Email: Southern.Prosecution.Disclosure@police.tas.gov.au
Phone: (03) 6230 2458

Email: Prosecution.Services.North@police.tas.gov.au
Phone: (03) 6336 3863

Email: prosecution.services.west@police.tas.gov.au
Phone: (03) 6429 8625

 

Step Three:  First Appearance

At the first appearance there are three things that can happen:

  1. The case will be adjourned to a later date for the person to prepare their plea of either guilty or not guilty. The defendant is entitled to an adjournment without plea and does not have to justify any adjournment.
  2. The defendant will plead guilty
  3. The defendant will plead not-guilty

Each of these steps entails different steps afterwards.

1. Adjournment

A new date will be set for the appearance in court, usually in about 6 weeks time. This means that at the next appearance, the defendant should be in a position to have considered their position, seek legal advice if necessary and to plead either guilty or not guilty. A first adjournment is a right, and will usually be granted.

2. Pleading Guilty

If a defendant pleads guilty there are two things that can happen. The facts and sentence may be finalised then and there, or the magistrate may order an adjournment to finalise the facts and sentence at a later date. See the pleading guilty section.

A defendant can plead guilty at any stage or be found guilty after a hearing. If a defendant pleads guilty the process can involve either the facts and sentence being finalised on the day, or the finalisation of facts and sentence will be adjourned until a later date. The process is as follows:

Facts and sentence of the guilty plea finalised on the day

Where a defendant has pleaded guilty, the facts of the charge against the defendant will be read out by the police who are referred to as the prosecution. For example: on 24th September 2011, at 7.01pm Greg Griggs was caught driving at 70km/h in a 50km zone. If the defendant agrees with these facts the sentence will be finalised. A sentence can be a fine, an order for community service, or a period of imprisonment, amongst other options.

The simpler the sentence – such as a fine for drink driving, and a period of licence suspension, the more likely that a magistrate will pass sentence at that appearance. There are complicating factors that can occur even at this stage such as a person indicating a plea of guilty but makes an application for a restricted licence in which case the whole process may be adjourned for another day. Similarly, the magistrate may require a pre-sentence report to get additional information.

What if the defendant pleads guilty to an offence but did not know they were committing an offence?

A defendant has a chance to speak for themselves before a sentence is passed. This is called a plea in mitigation. A defendant is not required to speak on their own behalf at this point, but they may do so. For example, a defendant may wish to tell the court why they were speeding in their car, and point out their good record or their need for a car so that the court can consider a lesser penalty.

However, if a defendant when speaking for themselves mentions that they did not know at the time that they were committing an offence, this may amount to a plea of not guilty. This is not the case all the time. Ignorance of the law is no excuse. Ignorance of certain facts may be important. For example, if a defendant says ‘ I accept that I was driving on a suspended licence now, but I did not know that my licence was suspended’, this indicates that they did not have the intention of driving with a suspended licence because they did not know their licence was suspended.

An intention – an awareness that the licence was suspended, is part of the charge of driving with a suspended licence. The magistrate will then replace the plea of guilty with a directed plea of not guilty, and a new court date will be set for a hearing. It is a duty of a magistrate to ensure that a defendant does not enter a plea of guilty if that plea is inconsistent with the facts as stated by either the prosecution or the defendant and if the defendant insists that they are guilty but gives a version inconsistent with guilt, the magistrate will enter a directed plea of not guilty. In many cases of shoplifting, the defendant will say ‘I didn’t mean to take the items but I want to get the matter over with today.’ If the defendant persists with this stance the magistrate will direct a plea of not guilty and list for hearing.

Sentence adjourned until a later date: facts and sentence finalised at a later date

Where the court adjourns to finalise facts and the sentence the time periods involved can be between one and three months. The court will adjourn where a sentence will be complicated, or there are other factors involved. These factors can include the court seeking a report to ascertain eligibility for Community Service Orders or Probation Orders.

A report may be necessary where the defendant has substance abuse issues and may qualify for court ordered drug diversion programs, where the defendant is a youth, where the defendant has mental health problems, or where a pre-sentence report is necessary. Reports take 4-6 weeks to be prepared, the defence and the court receive copies of the report/s.

If a person has been in custody and receives a prison sentence then a court will usually backdate the sentence to the beginning of the person’s period in custody. This means that any time the defendant has already spent in custody will count toward the sentence.

3. Pleading Not Guilty

If a defendant pleads not guilty then the matter may be adjourned for ‘mention’ to make sure that the defendant maintains the plea of not guilty and to ensure that everything is prepared for the eventual hearing. If the matter is not complex, the court may skip this step and list the matter directly for a hearing (see Pleading Not Guilty). Because any plea of not guilty has to be investigated carefully, courts cannot deal with a plea of not guilty on a first appearance in court.

Pleading not guilty:  A Typical Case

Note that a defendant can plead guilty at any time, even after the hearing has commenced. If a matter has been listed for hearing and you make a decision to plead guilty, the court and the prosecution should be advised so that the court can list other matters that day and the prosecution can advise their witnesses that they are not required to attend court.

If a matter is set down for hearing (you have plead not guilty) and you need an adjournment to delay the hearing, you can contact the prosecution who in appropriate circumstances (such as your hospitalisation) may consent to an adjournment. You should also advise the court.

A magistrate will require very good reasons for adjourning a hearing (particularly on short notice) if the matter is unable to proceed on the allocated day.

At the hearing it is the prosecution’s task to present the case against the defendant. The prosecution has to prove the elements of the offence ‘beyond reasonable doubt’.

The magistrate’s task is to adjudicate the case and ultimately to determine whether the prosecution has established the case against the defendant. The magistrate will attempt to safeguard the interests of a defendant to some extent but there is a limit to what the magistrate can do as the magistrate must remain impartial.

Consider the witnesses you would call, ascertain their availability and arrange for them to attend court. If a witness is necessary but unwilling to attend court for you then the police may call them, or you may have to summons the witness. Court staff can help you with the paperwork for this.

Prepare your questions for the police witnesses. You know what witnesses the police will call as a result of the earlier disclosure of the police case. There is no point trying to conduct your own cross examination without preparation. Even experienced lawyers prepare their client’s case in advance.

Your questions should be relevant and adequately put your case to the prosecution witnesses. If you disagree with any aspect of a witness’ testimony, make sure that everyone knows with which aspects you disagree and ask all necessary questions needed to undermine the credibility of that witness.

If you have any legal submissions to make prepare them in a written form to assist you when needed.

 

Step Four: Second and Subsequent Appearances

After the first appearance, the defendant can appear a number of times before a plea of guilty or not guilty is entered. Generally however, the magistrate will require a reason for further adjournments and will become increasingly unwilling to adjourn the matter without a plea being entered. As a final resort the magistrate may enter a directed plea of not guilty and set the matter down for a hearing. A magistrate cannot force a defendant to plead guilty.

Subject to the above comments, second and subsequent appearances proceed in the same way as a first appearance.

 

Step Five: Process

Case Summary

The prosecution gives the magistrate a short summary of the case and a summary of the prosecution evidence and perhaps mentions any legal issues.

Prosecution Witnesses and Evidence

Prosecution calls witnesses and puts into evidence relevant documents. Each witness gives evidence (examination in chief) and is asked questions by the defendant (cross examination). The prosecution is then asked if it wishes to ask further questions of the witness to clean up any ambiguities arising out of the cross examination (re-examination).

If a witness has any other evidence that they have brought to court with them (such as receipts for payment, photographs they have taken, plans or letters from government departments), they can produce these during their evidence in chief so they can be ‘tendered’ to the court. This procedure is repeated for each of the prosecution witnesses. 

It is important that the defendant questions the prosecution witness if the defendant challenges the evidence of that witness. If the evidence of a witness is unchallenged, the magistrate is likely to accept that unchallenged evidence. In some cases, identity of the driver may not be in dispute. In such a case it would be unnecessary to ask the police witness who was driving your car but if you were challenging the speed at which that witness alleges you were travelling, you should put questions to that witness that challenge his evidence and how that witness reached the conclusion as to your speed. If, on the other hand, you deny driving the vehicle in question, you should directly ask the police witness as to how he identified you as the driver, the nature and time of his viewing of you and other matters which may affect that witness’ credibility.

No case to answer submission

At the end of the police case, the defendant may submit to the magistrate that the defendant does not have a case to answer. This is an assertion that the police case taken at its highest is insufficient to prove all the elements of the offence. A magistrate will generally be alert, without your submission, to whether or not a case sufficient to answer has been established and if the magistrate, with or without your submission, finds there is no case to answer the complaint will be dismissed.

A case to answer

If there is a case to answer, the defendant may call evidence (including himself) in support of his case. You do not have to produce any documents, you can just give evidence’ by telling the court your version of events. It is not necessary for the defendant to call evidence. If the defendant considers that the case against him will not satisfy the court beyond reasonable doubt and the defendant’s witnesses will not assist he may choose not to call any witnesses. Of course in such situations the magistrate will not have any advantage gained by hearing from the defendant and the defendant’s witnesses.

Defence Witnesses and Evidence 

If the defendant calls witnesses, the defendant still does not have to give evidence himself. The defence case proceeds in the same way as the prosecution case but the defendant conducts the examination in chief and the re-examination, while the prosecution will cross examine.

Addressing the Court

At the conclusion of the case, both the prosecution and the defendant may address the court as to the evidence and / or the law.

Decision of the Court

If the magistrate decides in the defendant’s favour, the complaint is dismissed. If the magistrate decides in the prosecution’s favour, the magistrate will then proceed as if there was a plea of guilty. At this stage, the magistrate will be shown the defendant’s record of convictions for the first time.

 

Step Six:  The Plea in Mitigation

After a statement of fact by the prosecutor on a finding of guilt the defendant has the opportunity to address the court by way of a plea in mitigation. A defendant should prepare for the plea. It would be prudent to have notes which set out the reasons for committing the offence and which detail the personal circumstances of the defendant.

The object of a plea in mitigation is to put the defendant’s offending and personal circumstances in the best light so that the magistrate gives a sentence less than they might otherwise give.

Relevant matters that should be addressed are as follows:

  • Why you committed the offence;
  • How you have addressed the offending (i.e. you have enrolled in an anger management class, seen a counsellor or sold your vehicle);
  • What (if anything) you have done to remedy the offending (such as paying for the broken window or the stolen goods);
  • Education and work history and how a conviction might affect you, for example a conviction for use of cannabis would result in you losing your employment;
  • Personal and family details, for example you have a dependant wife and 4 young children or you are on an invalid pension with limited income;
  • Financial particulars;
  • References.

Many defendants find court daunting, particularly if the court is crowded and the press is present. In these circumstances, it is entirely acceptable to give a written statement to the magistrate which presents your plea in mitigation. A copy should also be provided for the prosecution.

If you have a reference from employers (both former and present) or friends who are prepared to say something positive about you, such references can be given to the magistrate.

If the reference is provided to show that you are generally of a good character it is important that the person giving the reference on your behalf states at the beginning of the reference their knowledge of the reason you are appearing in court. A reference given in the knowledge that it will be used in court conveys more weight than a general reference.

 

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