What happens when you are charged with a criminal offence in NSW?
If you are charged with a criminal offence in NSW, it usually means that you will have to go to Court, though in some instances, offences can be dealt with by infringement notice (fine only) by police or other authority. If you do need to go to Court, this article aims to help you understand a bit more about the process, and the sorts of things you might need to be prepared for.
Types of Matters
There are broadly 2 types of criminal matters: summary matters, and indictable matters.
Summary matters are criminal offences that are usually considered less serious (however, this is not always the case) and are finalised in the Local Court. The maximum penalty for a single offence that can be imposed in the Local Court is 2 years’ imprisonment. The maximum penalty that can be where multiple offences are sentenced together is 5 years’ imprisonment as an aggregate sentence.
Indictable matters are generally more serious. These are largely finalised in the District Court, with the most serious offences (such as murder), being finalised in the Supreme Court.
These matters are heard by a judge and jury (though there are circumstances in which a “judge-alone trial” can be requested). The maximum penalties that can be imposed in these jurisdictions are only limited by the offence provisions themselves, and can include life imprisonment.
To make things more confusing, there are some indictable matters which can be dealt with summarily (finalised in the Local Court).
These tend to commonly include matters like assaults, stalk/intimidate offences, larceny or stealing offences, robberies, and some sexual offences. These matters are called “Table 1 offences” or “Table 2 offences”, because they are listed in either Table 1 or Table 2 of Schedule 1 to the Criminal Procedure Act 1986 (NSW) as matters able to be dealt with summarily.
If indictable matters are dealt with summarily, they are restricted in penalty to the jurisdictional limit(s) of the Local Court (referred to above).
In “Table 1” and Table 2” matters, the “parties” can still elect to have the matter(s) proceed on indictment in the District Court – that is before a jury (or judge alone).
Table 1 offences, which are slightly ‘more serious’ than Table 2 offences, can be elected by either the prosecutor or the accused person.
Table 2 offences can only be elected by the accused person.
If an indictable matter is not listed on table 1 or table 2, it is ‘strictly indictable’, meaning it cannot be finalised under any circumstances in the Local Court.
No matter where the proceedings are destined to be finalised, they are ALL initiated in the Local Court of NSW.
The First Return
The first time you have to attend court in the Local Court of NSW, it’s usually also referred to as the “first return date” or “first mention”. On this occasion, you and/or your legal representative will appear before either a Registrar or Magistrate of the Court. If you are on bail, you must appear until excused, which is usually only done in circumstances where an accused person is legally represented.
If you don’t have a lawyer on the first return date, you should seek a brief adjournment in order to get some legal advice (ideally from the specialist team at Mitchell and Co Lawyers) on how to resolve the matter in a manner that is in your best interests.
How the proceedings progress from that point will depend on whether the offences are summary matters (or table matters that are not being elected as above), or indictable matters.
Summary Matters
If the matter is a summary matter (or a table matter that is not elected), you are generally expected to enter a plea on the first occasion (unless you were not represented). If a plea of not guilty is entered (other than in a domestic violence related matter – see below), the Court will then make orders that the police prepare and serve the brief of evidence on you/your legal representatives, at least two weeks before listing the matter for a “reply date.
On the reply date, the legal representative (or the defendant) can then either confirm the plea of not guilty previously indicated, or change their plea to guilty, after having seen and evaluated the evidence that the police intend to present.
If the plea of not guilty is maintained on the reply date, the matter is set up for defended hearing at a later date. It is not unusual for this to be 8-12 months in the future, depending on the workload of the Court.
If the matter is a domestic violence matter, after a plea of not guilty is entered (which is required to be entered on the first occasion) a hearing date must be taken on the first occasion, with orders for a brief of evidence to be served prior to the hearing (the Criminal Procedure Act 1986 requires this to be no later than 14 days prior). If a brief is served late, then the interests of justice dictate that the defendant should at least be granted an adjournment, but sometimes before this occurs, legal representatives can apply to have the evidence served late, excluded from the hearing entirely.
If a plea of guilty is entered (either on the first instance, or after the reply date), then the Court can either deal with the matter by sentencing on the day, or adjourn for the accused person to prepare for a sentence hearing. It is generally advised that the matter be adjourned for preparation, but there are some circumstances where finalising the matter on the first occasion may be preferable.
Indictable Matters
If the matter is an indictable matter (either strictly indictable or elected table matters), proceedings will follow a different path, which is called the ‘committal’ process.
In NSW, the ‘committal’ process for is now generally prescribed via reference to the Early Appropriate Guilty Plea (EAGP) scheme, but it is still commonly referred to as committal. In this process, there are a number of administrative adjournments whilst the police prepare the brief/evidence/materials and (once serve and compiled) hand this off to the relevant Director of Public Prosecutions (DPP) for review.
The DPP will decide which charges will proceed or not and whether to lay any additional charges. The DPP will also conduct the matter in the District (or Supreme) Court.
In the EAGP process, the DPP will certify the charges that are to proceed, then there will be a mandated case conference between the DPP and the defence (to canvas if any plea agreement can be reached) and then, if no agreement is reached, the accused person is ‘committed’ to trial in the District (or Supreme) Court and the proceedings are transferred to that jurisdiction.
Once the matter has been committed to the appropriate jurisdiction, it is the ordinary course that the accused person will be “arraigned” (where the charges are read onto the record and the pleas of Guilty or Not Guilty are formally entered (and spoken) by the defendant) and the matter is set for trial (or sentence, as the case may be). Again, there can be lengthy delays depending on the Court and the length of the matter.
Hearing
After your matter is listed for hearing, there may be a number of administrative adjournments or a readiness hearing prior to the hearing date. This will vary depending on whether the matter is summary or indictable and how many “pre-trial issues” there are.
Once the hearing begins, the ordinary course is that any remaining pre-trial issues are dealt with, a jury is empanelled (in indictable matters) and the prosecution will begin presenting their evidence and witnesses. Once the prosecution have finished with all of their evidence, the defence has an opportunity to open their case, however, if the defence thinks the prosecution have not established the offences beyond reasonable doubt, it may indicate to the Court that there is “no case to answer”.
The right way forward for each matter is dependent on the individual circumstances of the case.
After each party has finished all of their evidence or otherwise closed their case, the matter will be determined.
For summary matters, the Magistrate will sum up the evidence, direct themselves on applicable points of law and deliver judgment which will include the verdict and the reasons for that verdict. This may happen straight away or may be on a different list date if there was a lot of evidence to consider.
For indictable matters, the Judge will sum up the evidence to the jury, give the jury any directions required by the parties or otherwise according to law, clarify any issues for the jury, and then send the jury away for their deliberations to reach an agreement about a verdict.
All twelve jurors must reach a unanimous decision about the verdict for each charge, however, if they are unable to reach a unanimous decision, the judge may allow the jury to return a majority verdict. In this circumstance, a verdict or verdicts will be accepted by the Court where all but 1 juror reach the same decision. If the Jury is unable to agree or reach a “majority” after a significant period of time, the jury may be discharged and a new trial ordered to start afresh.
Sentence
Once the verdict has been returned (or a plea of guilty has been entered) in either a summary or indictable matter, the final step in the process is the sentence. This may occur relatively quick in summary matters, but in indictable matters there may be substantial delay.
Sentencing is a delicate balancing act of the Court and requires the Court to take into account a large number of considerations, such as the objective seriousness of the offending (including aggravating factors such as committing an offence in company with other people), the subjective features of the case and the offender (such as any mental health issues or significant contributing factors the circumstances surrounding the offending), the sentencing principles required by legislation or the common law, and the overarching purposes of sentencing.
Ultimately, the sentencing Court (through the Magistrate or the Judge as the case may be) formulates their sentence by a process of ‘instinctive synthesis’. The Court has a broad range of sentencing options available to it, ranging from no penalty at all, to fines, community orders requiring supervision or other conditions, and full-time custody (imprisonment).
Once the Court has passed judgment and imposed a sentence, it is determined to be final.
There are usually options of review or appeal available to an accused person in a higher Court, subject to further requirements being satisfied. We will likely discuss this in another article in future.
What should you do if you’re charged?
As can be seen from even the brief overview above, the legal process is not as straightforward as most people presume it to be.
Danger and huge risks exists for people who are not aware of their rights, or of how matters should proceed through the framework of the criminal justice system.
To give yourself or a loved one the best possible chance of navigating the legal system, make sure you give the expert team at Mitchell and Co Lawyers a call on (02) 8507 2091.
We are experienced and dedicated specialists in criminal law and we will give you the specialist advice that you need to ensure that an extremely stressful and difficult time, is handled with care, diligence and professionalism – and with a focus on achieving the best outcome in the circumstances.