The procedure for most criminal charges begins in the Magistrates Court. Depending on whether the charge is a simple offence (summary) one (that is, most common criminal charges) or an indictable offence (more serious charges such as serious drug offences, serious assaults, murder etc). Some indictable offences, called either way offences, can be heard by a Magistrates Court. If the words ‘summary conviction penalty’ appear in the provision creating the offence, this usually means that the offence is an either way one. The summary conviction penalty will always be lower than if the charge is heard, and proven, in a superior court.
The below is an outline of the court procedure for dealing with charges in the Magistrates Court, District Court and Supreme Court.
COURT PROCEDURE FOR OFFENCES DEALT WITH IN THE MAGISTRATES COURT
THE PROSECUTION NOTICE
The formal charge document is called a Prosecution Notice. In most cases, police officers issue the formal Prosecution Notice or charge, and a police prosecutor appears in court to conduct the case. A charge for a simple offence must be commenced within 12 months of the date that the offence is said to have occurred.
A PERSON WHO HAS BEEN CHARGED WITH A SIMPLE OFFENCE MAY RECEIVE A COURT HEARING NOTICE, A SUMMONS OR BE PLACED ON BAIL
As well as a Prosecution Notice being given to the accused person, a Court Hearing Notice may be given to them. If a person is given a Court Hearing Notice, they are not obliged to appear in court: they can plead guilty or not guilty in writing. If an accused person fails to appear in court for a minor traffic or criminal charge, the magistrate may decide to hear the case in the absence of the accused person by entering a plea of guilty and imposing sentence. The court will send the person a notice of court outcome.
A person who has been convicted of an offence in his or her absence may apply within 21 days of the conviction to have it ‘set aside’ (s.71). In order to have the conviction set aside, the convicted person must offer a satisfactory explanation for his or her failure to appear in court.
Some examples of simple offences:
- Disorderly Conduct
- Criminal Damage
- Traffic offences
- DUI and Drink Driving
- Possession of a Prohibited Drug
- Fisheries prosecutions
Another way of requiring a person to attend court is by summons attached to the Prosecution Notice. A summons is a legal document handed or delivered to an accused person which directs that person to attend court on a particular date and time.
The difference between receiving a Court Hearing Notice and a Summons is important. Attendance in court in response to a Court Hearing Notice is optional for an accused, while personal attendance in response to a Summons will always be required, the person does not attend the court can and usually does issue an arrest warrant.
ARREST AND BAIL
For the more serious criminal charges, the accused person must appear in court. Arrest is one method of getting the accused to appear in court. If a person has been arrested by the police and charged with a simple offence, he or she will have to appear in court normally that same day or the next.
A person who has been arrested will usually be fingerprinted, photographed, have a cheek swab taken for DNA testing (Criminal Investigation (Identifying People) Act 2002 (WA) and then held in the police “lockup” until court on the next day when a magistrate decides whether to release them on bail, or the police will release them on bail after charging them. People who are not given bail or cannot find a person to be a surety for them will be kept in custody, that is, in a prison until their charges are finalised in court.
FIRST COURT APPEARANCE
When the accused person first appears in court the charge is read out. Before they have to choose whether to plead guilty or not, they will be given a Statement of Material Facts. This is a description of what the police say the accused person did, and, if a plea of guilty is made, it will be read out to the magistrate to tell him or her about the circumstances of the offence.
If a person was interviewed by police and a video recording was made of this, the accused person or their lawyer is also entitled to have a copy given to them (s.570A Criminal Code) within 14 days of being charged or as soon as practicable if this is not possible.
The accused person does not have to say whether or not he or she is guilty at this stage. The court routinely allows an adjournment at the first court appearance to enable a person to obtain legal advice.
If the accused person wants to defend the charge, they will plead not guilty and the case will be remanded to another date for hearing. On the hearing date the accused person must have his or her witnesses present at court.
If the accused person is not legally represented at the first appearance in court or needs time to decide what to do or to gather documents he or she should ask the court to adjourn the matter for 4 weeks, after which the accused person will be expected to appear and plead guilty or not guilty.
PROCEDURE WHERE A PERSON PLEADS NOT GUILTY TO SUMMARY CHARGE
With summary criminal offences the prosecution supplies the accused or his/her lawyer with copies of prosecution witness statements and any statements or videotaped interviews made by the accused before the hearing and any other evidence the prosecution intends to rely upon. The accused has to give the prosecution details of any expert or alibi evidence they intend to use at trial. Sometimes, the accused person will plead guilty, or the police withdraw the charge if they are given extra information by the accused person’s lawyer which casts a new light on the evidence. It is very rare for legal aid to be given for trials in the Magistrates Court.
WHAT TAKES PLACE AT THE COURT HEARING IN THE MAGISTRATES COURT?
On the day of the hearing the court will first call on the prosecutor to present the case for the prosecution. The prosecutor may make an opening statement. He or she then asks the prosecution witnesses to give their evidence one by one. The magistrate is addressed as “Your Honour”.
Each witness enters the witness box near the magistrate and takes an oath on a bible or makes an affirmation (sworn promise) to tell the truth. The other witnesses usually have to stay outside the court room until it is their turn to give evidence.
The prosecutor then asks the witness questions (called examination-in-chief), and when the prosecutor is finished the accused person or his/her lawyer is entitled to ask questions in cross-examination. The prosecutor may then reexamine (ask more questions of) the witness.
The accused person may give evidence by going into the witness box, taking the oath or affirmation, and answering any questions asked first by their lawyer (or just giving their side of the story without a lawyer), and then by the prosecutor in cross-examination, and finally by their lawyer by way of re-examination. The accused person cannot, however, be made to give evidence if they do not wish to. The accused person may also call witnesses who can give evidence in their defence.
The accused person is also entitled to call evidence to show that they are of good character (that is, either to say they are of good character or ask other people to say that, or both). However, if the accused person calls evidence of their good character, then the prosecutor is entitled to introduce evidence of bad character (such as evidence of any prior convictions). The magistrate may also ask some questions, and if this happens both sides get to ask more questions to clear up anything the magistrate raised.
After all the evidence is heard, first the prosecutor and then the accused person or the accused person’s lawyer then have an opportunity to make a closing address. This is an opportunity for each side to explain their case, refer to the evidence presented to the court, refer to any relevant law and argue the reasons why the court should find the accused person guilty or not guilty. The accused or their defence lawyer has the last word
After hearing all the evidence and the closing addresses, the court will proceed to reach its decision (verdict). In some cases the magistrate will adjourn the case to think about the verdict. If the magistrate has a reasonable doubt as to the accused person’s guilt he or she will dismiss the charge. If, however, the magistrate is satisfied beyond reasonable doubt that the accused person is guilty of the offence he or she will find the offence proved and will then decide what penalty should be imposed.
If the charge is dismissed or the court finds the person guilty of an alternative offence, the accused person is entitled to apply for costs. Costs can include legal fees and witness expenses.
SENTENCING IN THE MAGISTRATES COURT
Once a person has been found guilty, or has pleaded guilty without defending the charge, the magistrate has to decide a penalty. The Court must not accept a plea of guilty unless either, the accused is represented by a lawyer, or if unrepresented, the Court is satisfied the accused understands the plea and its consequences. The court will be provided with a copy of the person’s Police and Traffic record.
The convicted person is entitled to the benefit of any mitigating factors such as his or her personal history, work record, previous good character, financial commitments, early plea of guilty, medical condition at the time of the offence and at the time of the sentencing, behaviour since the offence and any remorse shown for the offence. The prosecution may bring any aggravating factors to the magistrate’s attention, such as lack of remorse, pre-meditation and so on.
APPEALS FROM THE MAGISTRATES COURT
A person who is dissatisfied with a decision of a magistrate or a Justice of the Peace must obtain the leave (permission) of the Supreme Court to appeal against that decision. ). The application for leave to appeal must be lodged at the Supreme Court within 28 days of the decision. It is possible to obtain an extension of time within which to lodge the application, but only where the applicant can satisfactorily explain the delay in lodging the application and satisfy the Court that the appeal has merit.
Except in the case of a prison sentence, the grant of leave to appeal effects a stay on execution of the sentence. For example, fines do not have to be paid and any driver’s licence disqualification does not take effect unless and until the appeal is decided against the appellant.
If the applicant is in prison, an application for bail may be made. The applicant has to give the prosecution notice (that is, warn them) of the bail application.
An unsuccessful appellant has 21 days in which to lodge a further appeal to the Court of Appeal. Again, leave of the Court of Appeal is required in order to proceed with such further appeal.
COURT PROCEDURE FOR INDICTABLE OFFENCES IN THE DISTRICT AND SUPREME COURTS
The most serious indictable offences are heard before a Judge and Jury in the Supreme Court. Other indictable offences are heard before a Judge and Jury of the District Court. There is generally no time limit in commencing a prosecution for an indictable offence. Prosecutions of indictable offences generally must commence in the Magistrates Court before being transferred to a higher court. There is generally no time limit in commencing a prosecution for an indictable offence.
Since 2004 there is a presumption that such offences will be heard summarily (that is, by a Magistrate), unless the prosecution or accused apply for them to be heard in a superior court before a judge and jury and the magistrate agrees (s.5 Criminal Code).
If the accused person wishes to plead guilty to an indictable offence then the accused person may plead guilty on the fast track. This will result in a significant discount upon sentencing, usually 25%. If an accused person enters a fast track plea he or she goes directly to the District Court or the Supreme Court (as the case may be) for sentence.
If the accused person does not plead guilty then the case is put off until a police committal mention in the Magistrates Court in 12 weeks’ time. Before this the accused person or their lawyer has to be given statements of the prosecution witnesses, and any statement or videotaped interview given by the accused and any other available evidence in the possession of Police. Once the prosecution evidence (disclosure committal brief) has been provided to the accuse or their lawyer, the matter will be adjourned to a state committal mention. This means that carriage of the charge is transferred from the police prosecution to prosecutor employed by the Department of Public Prosecutions.
Once a prosecutor at the DPP has the file, they will review the brief of evidence and decide independently whether the charge should proceed. If the state prosecutor thinks the case is not strong enough against the accused person to require him or her to stand trial, he or she will make a recommendation to the DPP that the case should not go ahead. Where the case against the accused person is weak, or where there is important evidence in the accused person’s favour, the accused person or their lawyer may ask the DPP not to go ahead with the prosecution. If the prosecutor decides to discontinue the prosecution, the charges will be dismissed, however the accused person is not entitled to recover their costs.
An accused person may instruct their lawyer to enter into negotiations with the prosecutor to determine whether the matter can be resolved by way of a plea agreement. A plea agreement may result in some charges being amended, downgraded, or discontinued in exchange for pleas of guilty to a charge or charges. Where a plea agreement is reached, the person will enter pleas of guilty to some charges and the Magistrates court will then either transfer the matter to the District Court or Supreme Court for sentencing, or if the charges are able to be dealt with in the Magistrates Court, the matter will remain in the Magistrates Court for sentencing.
If there is no plea agreement and the person maintains a plea of not guilty, they will formally enter a plea of not guilty and matter will be committed (transferred) to the District or Supreme Court for trial. Once the matter is committed to the District or Supreme Court, the prosecution must file formal statement of the particulars of the charges, this is called an indictment. Once the matter has been transferred to the District or Supreme Court, the prosecution an defence will indicate to court the estimated length of the trial and whether any preliminary issues need to be listed for a directions hearing prior to the trial. The evidence of some witnesses such as children may be pre-recorded prior to trial.
Some examples of indictable offences:
- Possessing a Prohibited Drug with Intent to Sell or Supply and Drug Trafficking
- Sexual Assault and sexual offences involving minors
- Deprivation of Liberty
- Fraud exceeding $50,000
- Grievous Bodily Harm
- With Intent to Harm, Doing an Act or Omission Causing Bodily Harm or Endangering Life Health or Safety
- Aggravated Home Burglary
- Dangerous Driving Causing Death
- Armed Robbery
TRIAL OF INDICTABLE OFFENCES BEFORE A JURY
At the start of the trial the accused is placed in the dock (a special place in the front of the court) with a court security officer nearby. He or she is asked to plead guilty or not guilty. If the accused pleads guilty, there is no need for the jury and the Judge decides the appropriate sentence.
If the accused pleads not guilty, the jury of 12 members of the public is empanelled (chosen) out of a much larger pool who are summonsed to the court. They are each given a number and their numbers are chosen at random from a box. Their identities remain secret. The accused and the prosecution each have the right to challenge up to three jurors without having to give a reason. The only information available to the defence about potential jurors is the address and occupation.
Sometimes more than 12 jurors are chosen, especially in trials which are likely to last a long time. The “spares” are there in case of illness or other problems with any of the 12. After the jury has been empanelled the trial commences. The trial judge will give the jury some directions about how they should go about their task, listening carefully to the evidence and not to have regard to any other sources such as media coverage or the internet. =
The state prosecutor makes an opening statement to the jury and then calls the prosecution witnesses one by one. The accused or their lawyer also has the right to make an opening address.
Each witness enters the witness box near the judge and takes an oath on a bible or an affirmation (promise) to tell the truth. The first witness is usually the alleged victim or complainant. The other witnesses usually have to stay outside the court room until it is their turn to give evidence. The accused can stay in court for the entire trial. There are some exceptions where the two lawyers agree a witness can stay in court. One common example is in the case of expert witnesses such as doctors.
The prosecutor then asks the witness questions and when the prosecutor is finished the accused person or his/her lawyer is entitled to ask questions in cross-examination. The prosecutor may then re-examine (ask more questions of) the witness.
Special witnesses, including complainants in sexual offences, sometimes give their evidence from outside the courtroom via closed circuit television or in a position where they cannot see the accused person. In the case of children, the evidence is pre-recorded for subsequent presentation during a trial by way of playing of the video. A visual recording of the child’s Police Interview with trained police officers concerning allegations of physical or sexual abuse is able to be used at trial, provided that it complies with certain legal requirements.
At the end of the prosecution case the accused or the accused’s lawyer may ask the Judge to direct the jury to acquit the accused (find them not guilty) on the basis that there is no case to answer, (that is, not enough evidence to convict).
If this request does not succeed, the accused’s lawyer may call evidence, both from the accused and from any other witnesses, in the same way as the prosecution. If the accused elects to give evidence he or she can go into the witness box, take an oath or affirmation and give evidence, including being subject to cross-examination. The accused person has the right to remain silent and the judge will direct the jury that they must not draw any damaging conclusions from the person’s exercise of the right to silence.
PROCEDURE AFTER PROSECUTION AND DEFENCE CASES CLOSE
After all the evidence is given, both the state prosecutor and the accused or the accused’s lawyer address the jury (that is, make a speech about why the jury should convict or acquit as the case may be). The accused has the right to address last.
The Judge then sums up the case for the jury. The Judge is responsible for the proper conduct of the trial, and throughout the trial he or she may be required to make decisions on matters of procedure and questions of evidence. In the summing up the Judge must direct the jury on the law which applies to the case. He or she must define the legal parts of any charge and give appropriate instructions on the onus of proof and various other legal issues. The jury will then retire to the jury room to deliberate over the verdict. The court usually adjourns, however if the jury have any questions arising from their deliberations, court will resume and the judge will first discuss with the prosecutor and then the accused or their lawyer how he or she will answer the question.
If the jury reaches a verdict, it returns to the court room and the foreman or forewoman announces the verdict. No time limit is placed on the jury’s deliberations. If the jury returns a verdict within three hours of retiring, the verdict must be unanimous. After three hours, the judge can decide that the verdict may be by a majority of ten or more jurors, except in the case of unlawful killing and Commonwealth offences which have to be unanimous. The above rules apply regardless of whether the verdict is guilty or not guilty. If the jury is unable to reach a verdict then the jury (‘hung jury’) is discharged and the accused person may have to have another trial. The DPP decides whether this will happen.
NOT GUILTY VERDICT
If the jury finds the person not guilty, the verdict is recorded, and the accused person is discharged. The person is usually entitled to rely upon the jury’s verdict as a conclusive finding that the person is not guilty of the offence. The person cannot be retried for the same offences, unless the Court of Appeal grants leave for a re-trial on the basis that fresh and compelling evidence has come to light.
If the person is found guilty of some or all charges, the court will enter judgments of conviction and proceed to sentence the person. The court may adjourn the matter to enable reports to be prepared.
At the sentencing, the judge will make findings of fact based on the jurors’ verdicts. Before proceedings to sentence, the judge will hear submissions from the prosecutor and the offender or their lawyer, which may make reference to aggravating and mitigating factors, sentencing standards established by case law, the type of sentence that is appropriate and whether the person should be eligible for parole.
APPEAL OF INDICTABLE OFFENCES
A person who has been convicted by a jury, or has pleaded guilty and been sentenced by a Supreme Court or District Court Judge, can apply to the Court of Appeal for leave to appeal conviction, sentence or a refusal to make an order as a result of conviction. The Court is made up of three justices of the Supreme Court. The Notice of Appeal must be lodged with the Court of Appeal within 21 days of the date of conviction or sentence. If an appeal is not lodged within 21 days an application must be made to the Court of Appeal for an extension of time to appeal. The grounds of appeal which will be relied on must be lodged with the court. The prosecution can appeal on limited grounds, including against sentence, and against acquittal in the case of a trial by judge alone. Fees and costs are not awarded in relation to an appeal to the Court of Appeal.
If you have been charged with a criminal offence in Perth, WA and need legal assistance from professional and experienced criminal lawyers, contact us today.
Credit – “Court Process and Procedure” by Bill de Mars and Judith Fordham.