When you receive a charge from the police, the first thing to identify is what stream of the Court is your matter listed in.
- Summary Stream– for cases that will begin and end in the Magistrates’ Court. Typical examples are burglary, criminal damage, driving offences, minor dishonesty offences and some sexual offences. All traffic infringement contested matters are heard in the Magistrates’ Court.
- Committal Stream– for cases that are more serious and will likely proceed to trial in either the Supreme Court or the County Court. The law states certain serious offences must proceed through the committal stream, for example rape, armed robbery, aggravated home invasion, murder or where the amount involved exceeds $100,000 (eg: an alleged fraud exceeding $100,000).
This document provides an outline of the Court hearings for a case proceeding through the Summary Stream of the Magistrates’ Court. The summary criminal process begins when you are served with a charge or bailed to appear at a mention in the Magistrates’ Court.
On or before your first mention date, your lawyers will obtain a copy of the preliminary brief of evidence. You will be provided with a copy to review. We will confirm your instructions in conference with you and provide advice to you. Once you have had an opportunity to consider your position, we will be in a position to conduct a summary case conference with the prosecution about your matter.
A summary case conference will be held with the prosecutors where the issues in your case will be discussed. It may be a guilty plea can be negotiated on terms you are happy with. If this is the case, the case can either finalise on the mention date, or perhaps there is supporting material to be obtained and this mention date will be adjourned to a plea hearing to allow material to be collated. If there is outstanding police disclosure necessary or other investigations required, a further mention date may be listed.
If you are disputing the allegations, your lawyers will complete a document called a Form 11A with prosecutors and your mention will be adjourned to a contest mention.
The contest mention is the first step in the line when you are pleading not guilty to some or all charges or contesting the facts alleged as part of a charge.
The purpose of the contest mention is for the Court to engage with the parties in an attempt to resolve the charges and to prepare and list the matter for a contested hearing if the matter cannot resolve.
In an effort to resolve cases, the Court will ordinarily provide a sentencing indication at the contest mention. A sentence indication is where the Magistrate will hear the summary of the charges and a brief outline of submissions from your lawyer and proceed to indicate what sentence they would impose if you were to plead guilty to the charge/s. Where an accused person accepts an indication, the Court is not allowed to backflip and impose a more severe penalty. The Court is motivated to resolve cases and this is usually reflected in the indication given. If the case remains unresolved, it will be adjourned to a contested hearing.
Where a matter is to be adjourned to a contested hearing, the Court will likely seek the following information from your lawyer at the contest mention:
- Anticipated length of the contest
- What witnesses are required to attend for cross examination
- What legal issues are likely to arise
- What facts are disputed
- What facts are not disputed
- Does your lawyer intend to issue any subpoenas
- Is there any evidence or disclosure that hasn’t yet been provided to defence
- Are interpreters required
- What technology is required for the hearing (eg: DVD to watch police body worn camera recordings)
- Are any expert reports being relied upon
A contested hearing is a trial in the Magistrates’ Court where the accused pleads not guilty to one or more charges.
The case commences with the prosecution calling their witnesses in an effort to prove the charges against you. The defence have the opportunity to call evidence, including expert witnesses if relevant. As the accused person, you will make a decision about whether you give evidence in consultation with your lawyers.
At the conclusion of all evidence, your lawyer will make submissions to the Magistrate as to why you should be found not guilty of the charges. The prosecution will address the Magistrate on why they say the evidence points to your guilt. The Magistrate will then make their decision and deliver reasons for it to you.
If you are found guilty at a contested hearing
If you are found guilty of any charges at a contested hearing, your lawyer will need to conduct a plea in mitigation on your behalf. It is for this reason we ask you to provide us with your detailed personal history at the start, so that we can identify if we need to obtain any materials to support you on a plea if we need to. If you are found guilty, it is then our goal to achieve the best possible sentence for you.
If you are found not guilty at a contested hearing
You are acquitted of the charges. Bail ends, the case is over. Your lawyer will make an application for costs against the police to recover any legal fees you have paid.
What do I do now?
To ensure the best chance of a successful defence, it is important to get in contact with an expert criminal lawyer as soon as possible. At Emma Turnbull Lawyers, we have experienced criminal defence lawyers who can assist you in defending this charge.
Contact our office today to speak to an accredited criminal law specialist, on (03) 9077 4834 or at email@example.com