Court processes – Guilty or Not Guilty

What are the types of offences with which I can be charged?

In NSW, there are three types of criminal offences provided for by the criminal justice system. These are known as:

  1. Summary offences (in most cases, less serious offences);
  2. Indictable offences (Tables 1 and 2); and
  3. Strictly indictable.

What is a summary offence?

The main difference between summary and indictable/strictly indictable offences is that summary offences must be dealt with in the Local Court and usually have a maximum penalty prescribed by the Parliament of 2 years’ imprisonment.

Summary offences are typically prosecuted by the NSW Police.

Most traffic offences are summary offences.

What is an indictable offence?

Indictable offences are considered more serious crimes than summary offences.

If the case is an indictable offence, it is one that may be dealt with to finality before a judge and or jury in the District or Supreme Court of NSW. If the matter is dealt with in the District of Supreme Court the person may be (but is not usually) sentenced to the maximum penalty that the crime carries as set by the Parliament. Maximum penalties are typically reserved for offenders who commit the most serious example of the crime charge and who have lengthy criminal records.

Where an indictable offence is dealt with in the District or Supreme Court, the Office of the Director of Public Prosecutions will prosecute the crime.

Indictable offences can, and usually are, dealt with in the Local Court before a Magistrate. The advantage to this for the person charged with the offence is that they are no longer liable to be sentenced to the maximum penalty and may only be sentenced to a maximum penalty of two years’ imprisonment for any one offence.

Indictable offences that are dealt with summarily are typically prosecuted by the NSW Police.

The Criminal Procedure Act 1986 sets out which indictable offences can be dealt with summarily before a magistrate.  The Act lists offences of this type in two groups as being Table 1 and Table 2 offences.

Table 1 offences are to be dealt with summarily unless the prosecution or the defence elect to go to a higher court.  They are generally more serious than Table 2 offences.

Table 2 offences are to be dealt with summarily unless the Office of the Director of Public Prosecutions elects.  The defence do not get a say in the matter and if the prosecutor does elect, then the case will become indictable and be finalised in the higher court. They are generally the less serious offences, but more serious that summary offences.

What is a strictly indictable offence?

Some indictable offences that are considered too serious to be dealt with in the Local Court, for example murder, rape and supply of commercial quantities of drugs.  These most serious offences are known as strictly indictable. Whilst these offences start off in the Local Court they cannot be finalised there. They must finalise either at the District or Supreme Court of New South Wales for trial by judge/jury or sentencing. The person charged is exposed to the maximum penalty; however, Maximum penalties are typically reserved for offenders who commit the most serious example of the crime charge and who have lengthy criminal records.

Where an offence is strictly indictable, the Office of the Director of Public Prosecutions will prosecute the crime.

To read more about the details of the particular offence with which you have been charged, click here.

How is a person brought before the court?

The ways in which a person can be brought before a court are as follows:

  1. Arrest and issue of Court Attendance Notice: Police have the power to arrest people and take them into police custody. If a person has been arrested for an offence, the police will charge them with an offence and issue them a Court Attendance Notice. At this point they may be released unconditionally or released on the bail condition that they attend court to face the charge. Sometimes, the police refuse a person in bail. In such circumstances, the person will be brought before a court as soon as practicable for a bail application to be heard.
  2. Charged by way of Future Court Attendance Notice: The police may issue a person with a Future Court Attendance Notice to attend the Local Court on a specific date in the future. In these circumstances, a person is not arrested or taken into custody.
  3. Electing to challenge a fine or infringement: Where a person fills out a ‘court election’ on a Fine or Infringement Notice, the Court will notify them of a court date at which time they will be given the option to defend their matter or proceed to sentence. If a person elects to have a matter heard in court then they are exposed to the possibility of the maximum penalty (which can be a substantial fine or imprisonment) and the penalty is not limited to the amount of the original Fine or Infringement.

What happens at court if I am charged with a summary offence or indictable offence being dealt with summarily?

When a person appears in court for a summary offence or offence being dealt with summarily, the case is called and the person or their lawyer will be asked if they plead guilty or not guilty to the offence charged.

The court will normally allow the person time to consider their position or get legal advice and adjourn the case for a few weeks to allow that to occur.  In some circumstances, the courts will allow for a longer adjournment for negotiations to take place between the lawyers for the Accused person and the police. This is called making representations.

A person who pleads guilty will receive a discount on their sentence of as much as 25%. The discount is for the utilitarian value of saving the court, police and witnesses the time, expense and stress of a defending hearing. The later the plea of guilty occurs, the smaller the discount. If an Accused person is found guilty at a defended hearing then there is not discount at all.

What happens if I am charged with a summary offence or indictable offence being dealt with summarily and I plead guilty?

If the person pleads ‘guilty’, the matter may proceed to sentence on the day the plea is entered or be adjourned for the Accused person to obtain additional material to put before the court. Examples of material that can be obtained in psychological/psychiatric reports and references (a guide to reference writing can be found here). Alternatively, the court may order a Pre-Sentence Report or Sentencing Option Report to determine background and what penalties may be appropriately imposed.

At the time of a person’s sentence – in addition to any material the Accused person tenders such a reports and references –  their criminal and/or traffic history is handed to the Magistrate together with the ‘Facts Sheet’ which is a document prepared by police outlining the allegations and the circumstances of the offence. The Magistrate will consider the  material as well as the submissions of your criminal lawyer, prior to imposing a sentence on you.

Click the links below to find out more about the penalties that a court can impose in NSW:

Are there any options other than pleading guilty or not guilty if I am charged with a summary offence or indictable offence being dealt with summarily and I plead guilty?

An Accused person, rather than being sentenced or pleading not guilty, may ask a Magistrate to dismiss their matter pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990.

A section 32 order is made pursuant to the Mental Health (Forensic Provisions) Act 1990 and has the effect of diverting a person charged with a criminal offence out of the criminal system and typically into the care of their treating psychologist, psychiatrist or general practitioner. Treatment occurs in the community without court intervention. The making of a section 32 order does not require an admission of guilt but there is no finding of innocence either. A person subject to a section 32 order will have no criminal record.

A section 32 order can only be made for offences finalised in the Local Court of NSW.

To find out more about section 32, click here.

What happens if I am charged with a summary offence or indictable offence being dealt with summarily and I plead not guilty?

In summary proceedings or offences in Table 1 or 2 where the offence will be finalised in the Local Court, if the defendant pleads not guilty the prosecution for most offences must serve on the defendant a copy of the brief of evidence, including all witness statements and proposed documentary exhibits. The order to serve a brief of evidence will be on the day the defendant enters the plea of not guilty.

The court will then adjourn the case to allow the evidence to be served on the defendant and for the defendant and their criminal lawyer to consider the evidence. A case may be adjourned several times while the police put together a brief of evidence and serve it on the Accused person. The name of the date in which the matter returns to court following an adjournment is called reply. On reply dates, the police prosecutor will inform the court whether the brief of evidence is complete and has been served or whether more time is required.

Once the brief of evidence is complete, the Accused person or their lawyer is expected to advise the court of the witnesses required for cross examination and also witnesses to be called at the hearing of the case by the defence.  At the final reply appearance, a date for the matter to be finalised at a defended hearing is set by the Magistrate.

On the day of the hearing (if the matter is heard as there are often delays due to bust court lists), both the prosecution will call their witnesses first and Accused will call their witnesses second. The Accused has a right to silence and cannot be compelled to give evidence. The prosecutor and criminal lawyer will examine and cross examine any witnesses called.

The golden rule in our system of criminal justice is that the prosecution have to prove the case against the person charged beyond a reasonable doubt. The do not have to prove every fact beyond a reasonable doubt. However, what they do have to prove beyond reasonable doubt are the facts which support the ‘elements’ of the offence against the person charged.  To find out more about the elements of a particular offence with which you are charged, click here.

Following the evidence being called and submission by the prosecutor and your criminal lawyer, the magistrate will decide as to whether you are guilty or not guilty of the offence/s charged.

What happens at court if I am charged with a strictly indictable offence or an indictable offence being dealt with in the District or Supreme Court?

Indictable offences being dealt with in the District or Supreme Court and strictly indictable offences are commenced (but not finalised) in the Local Court.

Where an offence is strictly indictable offence or an indictable offence being dealt with in the District or Supreme Court, a person will be entitled to see the brief of evidence against them before being asked whether they plead guilty or not guilty. To allow the Accused person to see what the evidence is against them to make an informed choice, the Magistrate will order the Office of the Director of Public Prosecutions to serve on the defendant a copy of the brief of evidence, including all witness statements and proposed documentary exhibits.

The court will then adjourn the case to allow the evidence to be served on the defendant and for the defendant and their criminal lawyer to consider the evidence. A case may be adjourned several times while the police put together a brief of evidence and serve it on the Accused person. The name of the date in which the matter returns to court following an adjournment is called reply. On reply dates, the Office of the Director of Public Prosecutions will inform the court whether the brief of evidence is complete and has been served or whether more time is required.

Once the evidence has been served, the case is considered ready to leave the Local Court jurisdiction and the Accused person will be asked whether they plead guilty or not guilty (having had the opportunity to consider the evidence against them). Depending on what the Accused person decided to do, the case will either be listed for:

  1. Committal for sentence – where the person pleads guilty, or
  2. Committal for trial – where the person pleads not guilty.

A person who pleads guilty at committal in the Local Court will receive a discount on their sentence of as much as 25%. The discount is for the utilitarian value of saving the court, police and witnesses the time, expense and stress of a trial. The later the plea of guilty occurs following committal, the smaller the discount. If an Accused person is found guilty at trial then there is not discount at all.

What happens if I am committed for sentence?

If the person has entered a plea of guilty in the Local Court to an indictable offence, the magistrate may commit the person to be sentenced in the District or Supreme Court. This normally occurs following discussions between your criminal lawyer and the Office of the Director of Public Prosecutions as to the offences (your lawyer will often have charges upon on an agreement you plead some but not all of the offences) and agreed facts (your lawyer will obtain the least serious set of facts possible by negotiating what is included and not included in them).

Once the Accused person has been committed to the District Court for sentence, they will appear before the Judge. On the first occasion the person appears in the District Court they will be arraigned in that the charge will be read to them and they will be asked to confirm their plea of guilty. The case will then be adjourned to a date the court is available to hear the sentencing proceedings.

In the time of the adjournment, the Accused person will have the opportunity to obtain additional material to put before the court. Examples of material that can be obtained in psychological/psychiatric reports and references (a guide to reference writing can be found here). Alternatively, the court may order a Pre-Sentence Report to determine background and what penalties may be appropriately imposed (however, requesting these reports is usually a matter for the lawyer of the Accused person).

On the date of sentence – in addition to any material the Accused person tenders such a reports and references –  their criminal and/or traffic history is handed to the Judge together with the ‘Agreed Facts’. The Accused person or witnesses for the Accused person may also give evidence about their character and what led to the offending. Any witness called may be cross examined by the solicitor for the Office of the Director of Public Prosecutions.

The Judge will consider the  material before him or her, as well as any evidence called by way of witness.  Your criminal lawyer and the solicitor for the Office of the Director of Public Prosecutions will then make submissions about the seriousness of the offending and the appropriate penalty. With all these matters in mind, the judge will then determine the appropriate sentence to impose on you.

Click the links below to find out more about the penalties that a court can impose in NSW:

What happens if I am committed for trial?

Committals for trial are usually proceed by waiver, by reading of the brief of evidence or are contested involving cross-examination of witnesses. Your criminal lawyer will normally advise you what the best strategy is at the committal stage. At the committal stage, the Magistrate in the Local Court must be satisfied as to the following:

  1. After considering the prosecution evidence at its highest, the magistrate must determine whether there is a prima facie case. ‘Prima facie’ is a Latin term meaning ‘on the face of it’.
  2. The magistrate must then determine whether ‘there is a reasonable prospect that a jury would convict‘. This is once again based upon taking the prosecution evidence at its highest.

If the magistrate decides that there is a reasonable prospect that a jury would convict, the defendant is committed for trial to either the District or the Supreme Court. If the magistrate decides that there is no reasonable prospect that a jury would convict, the magistrate must discharge the defendant.

Once the person has been committed to the District or Supreme Court for trial, a date for that trial will be set. Most trials in NSW are before a jury but there are some circumstances where it can be heard before a judge sitting alone.

A trial by Judge and jury will generally involve the following events and procedures in the following order:

  1. Legal argument. This is where your criminal lawyer and the Crown Prosecutor argue as to what evidence the jury should hear at your trial.  The judge will ultimately decide what evidence is admitted into evidence.
  2. Empanelling of the jury (the process of selecting the jury members with each of the defence and prosecution having three challenges);
  3. Opening statement by the Crown Prosecutor;
  4. Calling of witnesses by the Crown Prosecutor and cross-examination (questioning of the witness) by your criminal lawyer;
  5. Opening statement by your criminal lawyer;
  6. Calling of witnesses by your criminal lawyer and cross examination by the Crown Prosecutor;
  7. Final submissions by the Crown Prosecutor and your criminal lawyer;
  8. Summary of the whole law and evidence by the judge to the jury;
  9. The Jury deliberate until they reach a verdict of whether you are guilty, not guilty or unable to reach a verdict. In the first instance, verdicts are required to be unanimous.

If an Accused person is found not guilty, they are acquitted and the case ends. If the Accused person is found guilty, the trial is adjourned for sentence in the same manner as if a plea of guilty had been entered; however, the judge will determine the facts from the evidence in the trial and there is no discount for an early guilty plea.

If a person is sentenced to imprisonment, they may appeal but they will not be granted bail unless they show ‘exceptional circumstances’ warranting the grant of bail.

Why choose AC Law Group’s criminal lawyers?

Our lawyers are experts in the criminal process and providing our clients with the right advice so we can help them get the best result possible.

We are experienced in all manner of criminal cases, meaning whether your case is a minor drug possession, drink driving or murder, your matter will be assigned to a senior lawyer who give you the representation you require when your licence or liberty is at stake.

At AC Law Group, we are renowned for keeping our clients out of gaol, free of criminal records and on the roads with their licences. If you need legal help, call our solicitors in Sydney, Parramatta, Blacktown or Redfern today or make a website enquiry.

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