The Court Process

Offence categories in New South Wales

Australia's Court and Criminal Justice System provides for (2) types of offences. These are known as:

1. summary offences,
2. indictable offences.

As a general rule, the less serious offences are ‘summary offences'. However, the major difference between ‘summary' offences or offences that are ‘indictable' is the maximum penalty that can be imposed.

Summary offences usually carry with them a maximum penalty prescribed by the Parliament of (2) years imprisonment. Often, the Crimes Act 1900 will make it clear that the offence is summary.

For example, drink driving offences (unless someone is killed or seriously injured) are summary offences. Trespassing onto another person's property is also a summary offence.

Indictable offences

Generally are considered to be the more serious of crimes. If the case is an indictable offence, it is one that may dealt with to finality before a judge and or jury in the District or Supreme Court of New South Wales.

If that is the case, the person is liable to the maximum penalty that the crime carries as set by the Parliament.

Can indictable offences be dealt with in a Local Court?

The answer is yes. Some indictable offences can be dealt with before a magistrate in the Local Court if considered to be suitable. 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.

This is known as the matter being dealt with summarily.

Whilst there are some exceptions to the rule; offences that are dealt with summarily are dealt with before a Magistrate in the Local Court where the maximum penalty that can be imposed for any offence is (2) years imprisonment. That is despite the maximum penalty that the offence may carry.

However, there are some indictable offences that are considered too serious to be dealt with in the Local Court. They are known as strictly indictable'. Even though these offences start off in the Local Court they cannot be finalised there. They must go either to the District or Supreme Court of New South Wales for trial or sentencing.

What type of indictable offences can be finalised in the Local Court?

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 (2) groups as being Table 1 & 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. The complete list of

Table 1 offences include:

• reckless wounding or inflict grievous bodily harm (really serious injury);
• aggravated indecent assault;
• dangerous driving where death does not result;
• stealing or receiving stolen goods over $5,000;
• break and enter offences under $15,000;
• other dishonesty offences such as stealing from an employer or embezzlement;
• steal motor vehicle;
• public order offences such as riot;
• escape and other prison offences;
• drug offences for amounts over a small amount but less than a large or commercial quantity.

Table 2 offences are to be dealt with summarily unless the prosecutor 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.

Table 2 offences include:

• assault, assault occasioning actual bodily harm assault police, indecent assault;
• stealing or receiving stolen goods for under $5,000;
• malicious damage under $5,000;
• possession of an implement for the purpose of breaking into a building;
• take and drive motor vehicle without the consent of the owner.

Strictly indictable offences

The last group of offences are those that carry a maximum penalty more than (2) years imprisonment and are not mentioned in either Table (1) or Table (2).

These offences include murder, manslaughter, offences regarding the infliction of really serious injury when the person intended to do so, robbery, very serious sexual offences and drug offences involving large quantities of drugs.

These offences must be dealt with in either the Supreme or District Court before a Judge and or jury. The person charged is liable to the maximum penalty.

The offence of assault occasioning actual bodily harm is set out in the Crimes Act 1900 at section 59. This offence is made out if the person has assaulted the victim and in doing so the victim has sustained an injury that need not be permanent but more than transient or trifling. For example, if the offender has an argument with the victim and punched the victim in the nose, causing it to break or bleed, then this offence would be made out.

This offence carries with it a maximum penalty of (5) years imprisonment and (7) years if it is committed in the company of others. It is a Table 2 offence.

If there is no election by the prosecution, the case would remain in the Local Court where the most (generally speaking) the offender could be sentenced to is (2) years imprisonment.

How is a person brought before the court?

Generally speaking, there are (5) ways that a person can find themselves before a Magistrate in a criminal prosecution:

1. Charged by the police: The police are empowered by the Parliament and our legal system in general to arrest people. If a person has been arrested for an offence by police they may be charged and released on bail conditionally that they attend the Local Court to face the charge.
2. Sometimes, the person's bail might be refused and they will be taken as soon as practicable, before the Local Court.
3. The person is provided with a Court Attendance Notice: Police may decide to either arrest the person or issue them with a Notice (CAN) to attend the Local Court on a specific date in the future. The police may also issue the CAN at the scene so the person does not have to be taken to the police station.
4. The person is served with a summons: This does not happen as much these days but a police officer is able to make a formal complaint to the court and based upon that complaint, the court will issue a summons setting out when and where the person is to appear before the Local Court.
5. The person has filled out the ‘court election' on an Infringement Notice: if you have ever received a speeding ticket you will see the ‘court election' on the reverse side of the ticket. If this is filled out and sent off, you will receive a CAN setting out the time and place for you to appear in the Local Court.

What happens if you received a CAN or a bail notice and do not turn up at court?

It depends on the type of charge. If the offence is a serious one, such as a strictly indictable offence, the court may issue a warrant for your arrest so that the person is brought before the court in custody. The court can do this even if the offence is a summary offence however this is not common.

If a person has been bailed by police or another court to appear at a certain time and date and fails to appear, they are liable to being found guilty of a separate offence of fail to appear in relation to bail undertaking and if found guilty, they are liable to the same punishment as the offence that they are charged with; on top of the original offence.

If the offence is not a serious one or is not strictly indictable, the court can impose a penalty in the person's absence which includes disqualification of licence.

The CAN or summons will list a time for the person to appear as well as the date they have to appear. That time is usually 9.30am. In reality, a person running late who does not get to court until well after 10am may find themselves arriving at court and learning they have been found guilty and punished without having a chance to argue their case.

If I arrive late and my case has been dealt with can I do anything about it?

The answer to this question is ‘yes'. However, the court will need to be convinced there is sufficient reason to annul its decision and or penalty. If the court grants an application to annul the finding of guilt and penalty will be wiped and the process will recommence.

However, there are rules and time limits associated with an application to annul a penalty and you may need legal advice or assistance.

What happens at court?

Summary offences

If a person has received a Court Attendance Notice (CAN) or summons to appear at court they can attend personally or have a lawyer appear on their behalf.

For minor offences, they can fill out the court election on the CAN and send in a letter outlining the issues they want the court to consider if they admit the offence.

Defendant appears in person - Pleas of guilty

When the case is called the person will be asked if they plead guilty or not guilty to the offence. 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. However, courts become very wise to people who try to stall or delay the process by asking for adjournments.

If the person pleads ‘guilty' they may well have the case dealt with on the same day. Again, if the person wants the opportunity to place additional material before the court before penalty is handed down the court will often give them more time to do so.

If the offence is a Table 1 or 2 and as such more serious in nature or, the person has a bad record, the court may need more information as to sentencing options. These might include community service or supervision by the NSW Probation Service as part of a good behaviour bond.

I invite you to click the Penalties link on the Marsdens Criminal Law main page for more information about penalties and the sentencing process.

The person's 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. Once the facts sheet is tendered, the court will often not be open to challenge about its; content. So, if a person wants to challenge the facts as relied upon by the police; yet still admits the offence, they should do so before it is placed before the magistrate.

If a sentence is passed and the person fined, they will have 28 days to pay any fine and or costs unless they get an extension from the Clerk of the Local Court for additional time to pay.

Defendant appears in person - plea of 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 must serve on the defendant a copy of the brief of evidence, including all witness statements and proposed documentary exhibits, 14 days before the hearing or such other time as the magistrate determines.

If the brief is not served, the magistrate may dispense with service, adjourn the proceedings (for the evidence to be served as it should have been in the first place), or even refuse to admit the evidence.

In determining whether or not to refuse to admit the evidence the magistrate is exercising a discretionary judgement and should weigh up the competing policy considerations including the quick and efficient disposal of criminal proceedings (on the one hand) and the public's interest in prosecuting offenders.

However, it should be noted that in less serious offences, for which a penalty notice may be issued, (such as speeding or parking offences) the prosecution do not have to serve a brief of evidence.

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 defence to consider which witnesses they want to challenge and cross examine at the hearing of the case.

The next time the person comes back before the court, it is to reply to the brief of evidence and 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 reply appearance, a date for the matter to be heard and determined by a magistrate is set. This is called the hearing date and all witnesses must be in attendance on that day.

At the hearing, both the prosecution and defence call any witness they want to in their case and cross examine witnesses. Generally (but not always) the magistrate will make a decision on the day and often (but again, not always) pass sentence if the person if found guilty.

This process does not always run smoothly however so people should be ready to deal with delay. As depicted in television shows, books and movies, the golden rule in our system of criminal justice is that the prosecution have to prove the case against the person charged. They have to prove that case to a very high level being beyond a reasonable doubt.

In any defended court case, the prosecution might allege many and varied facts against the person charged. They do not have to prove every fact beyond a reasonable doubt. However, what they do have to prove to that high degree are the facts which support the ‘elements' of the offence against the person charged. All criminal offences have elements.

Strictly Indictable Offences

Table 1-2 offences where there is a plea of guilty:

• If the offence is to be dealt with in the District or Supreme Courts, there is a similar process to be followed with a couple of fundamental differences.
• All cases commence the process in the Local Court. If the offence is strictly indictable or there is an election made, they must still pass through the Local Court.

Once the case is ready to leave the Local Court jurisdiction, the case will either be listed for:

a. Committal for sentence - where the offence is admitted, or
b. Committal for trial - where the case is to be defended.

Committal 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 might be done on the contents of the brief of evidence or by way of Agreed Facts. The Facts sheet is usually signed by the defendant and when they appear for sentence, it will be on the basis of those facts that sentence is passed. Just as in the case of a plea of guilty in the Local Court, the Judge who passes sentence in the District or Supreme Court will rely upon those facts as binding.

It is most important a person to be committed for sentence in the District Court receives competent advice from an experienced criminal lawyer. We look forward to being able to assist you, contact Sharon Ramsden, at sramsden@marsdens.net.au to arrange an appointment.

Once the person has been committed to the District Court, they will appear before the Judge. More often than not, if the person was on bail in the Local Court that bail will continue or may be varied to some degree. Sometimes, however, the bail may be revoked.

On the first occasion they appear in the District Court they will be arraigned. In other words, the charge will be read to them and they will be asked to confirm their plea of guilty.

Even if a person has entered a plea of guilty in the Local Court, they may still decide to not adhere to their plea before the Judge on arraignment. If this happens, the person will stand trial before a Judge and or jury.

If the person adheres to their plea of guilty a similar process follows for sentence to be passed by the Judge. The only real difference being that on occasion, the Judge may not pass sentence on the day he or she hears the sentencing case.

Committal for trial

If the person does not admit the strictly indictable or Table 1-2 offence they may be committed to the Supreme or District Court to stand trial. Most trials in NSW are before a jury but there are some circumstances where it can be heard before a judge sitting alone.

For a person to be committed to stand trial, the magistrate in the Local Court must be satisfied as to the following:

after considering the prosecution evidence at its highest, the magistrate must determine whether or not there is a prima facie case. ‘Prima facie' is a Latin term meaning (very loosely) ‘on the face of it'.
the magistrate must then determine whether or not '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.

I think it is a fair statement to make that generally, people are committed to stand trial based upon this test.

Can I call evidence or cross-examine witnesses at a committal hearing?

The simple answer is ‘yes' but the law in NSW has evolved in recent years to make that task a more difficult one.

The magistrate should not require a witness in an offence involving violence to give evidence unless there are 'special reasons in the interests of justice'. The phrase 'in the interests of justice' has been interpreted as including where it would be 'a paramount consideration that an accused person should have a fair trial'.

Special reasons may include where the prosecution case is weak, or where identification evidence is in issue. Or where there is an issue over the alleged victim's willingness to testify. Special reasons may include where the complainant in a sexual assault case is vague about the dates of the offences.

For other types of offences, the magistrate will not require a witness to give evidence unless there are 'substantial' reasons in the interests of justice. It has been held by higher courts that Substantial reasons are ‘obviously much wider' than special reasons 'Substantial' does not mean special. It is not necessary to show that the case is exceptional or unusual.

The Trial

Once the person has been committed for trial, a date for that trial will be set. Often there will be issues of law to be decided before the trial commences. These legal issues are call ‘pre trial issues'.

Once the jury has been empanelled the trial will commence and run until there is a verdict or the jury indicate they are unable to reach a verdict.

If a person is found guilty at trial they can appeal but if they have been sentenced to imprisonment, will not be granted bail unless they show ‘exceptional circumstances' warranting the grant of bail.

Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.