Going to Court
Before any charge is heard, we will obtain a copy of the prosecution brief from the police. The prosecution brief contains details of all the evidence the police propose to use in court in an attempt to prove the charges against you.
We thoroughly analyse the prosecution brief to find any defences open at law. These may be defences of fact, such as not being able to prove that the defendant was the person who committed the crime; or legal defences, such as the provable facts do not prove a breach of the law. We will consult with you, with all potential witnesses and with relevant experts and consultants.
We can go to court for you or, if appropriate, brief a barrister to represent you in court. We only use the best and brightest barristers who we have seen and tested. We will select a barrister who best suits your case.
Summary offences in the Magistrates’ Court
Your first appearance in the Magistrates’ Court is called a mention date. The purpose of the mention date is to determine whether you will be pleading guilty or not guilty.
If you plead guilty, the plea (sentencing hearing) can be heard then and there on the mention day. The prosecutor reads a statement of facts to the court, agreed to by the prosecutor and yourself, and we make a submission to the court in relation to the penalty. We tell the Court about your background, your character and reputation and we may call on others to give character and expert evidence. Of course, the aim is to minimise any penalty imposed.
Sentencing hearings are extremely important as the court can determine a penalty that ranges from dismissing the charge to sentencing you to years in prison.
If you plead not guilty, your case will be adjourned (postponed) to a contest mention hearing. A contest mention hearing is heard before a Magistrate and the aim is to determine whether the matter can be settled by the police withdrawing the charges in dispute or by you agreeing to plead guilty.
If the matter cannot be resolved then, it is adjourned for a contested hearing. A contested hearing is a full hearing before the court. It involves the police calling all their evidence in an effort to prove the charge against you beyond reasonable doubt and your lawyer doing everything possible to raise reasonable doubt.
If you are found not guilty, you may apply to the court for the police to pay some of your legal costs. This order usually follows dismissal of charges, however, there are exceptions.
If you are found guilty and you disagree with the magistrates’ finding of guilt or with the penalty imposed, you have an automatic right of appeal to a single judge in the County Court. We will file appeal papers on your behalf and you will be either bailed or remanded in custody to appear before a County Court judge who will completely re-hear the matter.
This automatic right of appeal provides a very significant safeguard. You do not have to prove that the magistrate made any errors, you are simply disagreeing with the result and seeking another go.
This right of appeal is only available in the Magistrates’ Court. For example, in the County Court you can only appeal a verdict if the trial judge has made a serious mistake with the law.
Indictable offences in the County Court or Supreme Court
Indictable offences are heard in the County Court or Supreme Court before a jury and usually follow a preliminary or committal hearing in the Magistrates’ Court.
The Director of Public Prosecutions brings prosecutions in the County Court.
After being charged you will be either bailed or summoned to appear at a filing hearing in the Magistrates’ Court. This is an administrative hearing that simply sets dates for the service of the hand up brief and for the next court hearing, which is the committal mention.
The hand up brief contains details of all the evidence the prosecution proposes to lead against you, such as statements and exhibits (for example, transcripts of records of interview, photographs).
If you wish to test the prosecution evidence, it is necessary to have a committal hearing. We will file for a committal hearing with the Magistrates’ Court, stating the witnesses we seek to cross-examine and why.
At the committal mention, the magistrate will hear argument about whether these witnesses should be called for cross-examination. The matter will then be adjourned to a contested committal hearing date.
The committal hearing is extremely important. It allows us to cross-examine prosecution witnesses and test the prosecution case.
At the close of the committal hearing, the magistrate will decide whether there is sufficient evidence for a jury in the County Court to convict. If the magistrate believes there is sufficient evidence, you will be committed to stand trial in the County Court. If not, you will be discharged.
If you are committed to stand trial in the County Court, there are a number of steps before the trial takes place:
A case conference is heard before a County Court judge to identify the issues involved in the case.
A directions hearing is held to sort out preliminary matters such as anticipated length of trial, what witnesses are required and to check that funding is in place for the trial.
The Director of Public Prosecutions gives us a document called the presentment, which lists the formal charges that will be put before the County Court jury for determination.
The trial in the County Court is heard before a jury of 12 people. Their role is to determine whether the presumption of innocence can be overturned by proof beyond reasonable doubt of guilt.
The role of the judge is to ensure that the evidence proceeds according to law and, if you are found guilty, to sentence you. In that event, we will make submissions or a plea on your behalf to try to minimise the sentence.
If we believe that the judge made an error during the trial or gives a sentence that is excessive, we can appeal to the Court of Appeal in the Supreme Court.
Three judges of the Court of Appeal will then determine whether or not to grant the appeal.