Court Procedure - ACT

All criminal proceedings in the ACT commence either by a ‘summons’ being served by a police officer on a person, or the police laying a charge after arrest.

If a summons has been served on you, you are required to attend the ACT Magistrates Court on the date listed in the summons unless a lawyer appears on your behalf. The summons should contain details of the charge, the date you are to attend court and a “Statement of Facts,” which sets out what the police say are the circumstances of the charge. Despite its name, the “Statement of Facts” is simply a police version of events, which may or may not include information gathered from witnesses or other evidence.

If you have been arrested, the police will inform you whether or not they will be laying charges. When charges have been laid you may be released on police bail and given a date to attend court; if the police do not release you, you will be brought before the Magistrates Court for a bail application to occur. This should occur within 48 hours of your arrest.

There are two criminal courts in the ACT: the Magistrates Court (which includes the Childrens Court) and the Supreme Court. No matter how serious, all criminal charges will start in the Magistrate Court. Whether a charge stays in the Magistrates Court or moves up to the Supreme Court depends on a number of factors such as: the type of charge, seriousness of alleged conduct, maximum penalties or the value of any damage and the views of the prosecution or defence teams.

If you want to defend the charge against you, the first step is entering a plea of not guilty. This causes a brief of evidence to be prepared by police. A brief of evidence is all the material including any witness statements, police statements, photographs, CCTV or anything else they say prove you committed the offence you were charged with. This can take between 6-10 weeks, or even longer if your matter is complex.

If your matter is staying in the Magistrates Court, it is then listed for what is called a hearing. This is like a trial, where the prosecution presents the evidence against you, you defend the charge and maybe tell your side of the story, but the person who decides is a magistrate, not a judge or jury.

As matters that go to the Supreme Court are generally more serious or complex, it takes a lot more time and preparation to get to a trial. A trial means that, like for a hearing, the prosecution presents the evidence and you have a chance to defend the charge. However, because you are in the Supreme Court, you will either have a judge deciding or a jury (12 people randomly selected from the community). For most types of charges, you can choose whether you would prefer a judge or jury to decide your case, but some types of charges like sexual charges or murder can only be decided by a jury.

If you are found not guilty of a charge, the hearing or trial is usually the end of the matter. If the charge is in the Magistrates Court, you may be able to recover some of your legal costs from the Australian Federal Police. If you were found not guilty in the Supreme Court, recovering costs is not possible.

When you are found guilty of a charge, you will then need to be sentenced – this is a time for the magistrate or judge to determine what consequences would be appropriate for your guilt. For some simple matters, this can be done immediately after the hearing but for more serious and Supreme Court charges, this is usually done a few months after the hearing or trial has concluded. A sentence hearing allows the court to hear not only about the charges and the people they may have impacted, but about who you are and how charge has and will affect your life, and your character or any past criminal record, amongst many other considerations.

Being found guilty of a charge (also known as being convicted) is not necessarily the end of the story. It is possible there was something legally or factually wrong with how a decision about your guilt was reached, or the sentence you were given may have failed to consider some important factors or been too harsh for the charge. When this happens you can appeal the conviction or the sentence, or in some cases, both.

This means that your matter is sent to a higher court for them to decide if there was an error and if so, what should be done about it. If you do want to appeal, you must decide and file that appeal with the court within 28 days from the conviction or sentence. If you are outside this time limit, you may not be able to appeal or you may need to ask the court’s permission first.

The first directions in the ACT Supreme Court is a procedural court appearance for case management which will occur shortly after committal. The Court will generally make orders directing the prosecution to file and serve the indictment, case statement, witness list, and pre-trial questionnaire within five weeks of the first directions hearing. The Court will also direct the accused the accused is required to file and serve their own pre-trial questionnaire 2 weeks later. Soon after these documents have been filed the matter will be heard at arraignment.

At an arraignment the accused will be arraigned on the indictment presented by the prosecution and enter a plea of guilty or not guilty to the counts on the indictment. This means that an associate of the judge will read out the counts on the indictment and ask the accused to themselves say whether they are guilty or not guilty.

If a plea of guilty is entered, the matter will be referred to the registrars list to set a date for sentence and make any other directions for the filing of material in preparation for sentence.

If a plea of not guilty is entered, the matter may be given various listings, including for any pre-trial applications, for a criminal case conference and potentially for a call over to later list the matter for trial.

Criminal Case Conferencing is a compulsory mediation between the prosecution and defence. The objectives of conferencing are to discuss the case with the goal of either early resolution or narrowing of issues to be heard in trial.

The parties will address factual or legal disputes, discuss the strength of evidence and identify issues that are not in dispute. These conferences aim to identify strengths and weaknesses in the evidence, clarify factual and legal issues, and encourage negotiation to save court time and resources. The theory is that if a prosecution case is considered week the Criminal Case Conference judicial officer may encourage the prosecutor to consider whether they should discontinue the case. If the prosecution case appears strong, the judicial officer may encourage the accused to consider negotiating with the prosecutor to potentially plead guilty to some or all counts on the indictment. Discussions in the Criminal Case Conference about potential negotiations are generally not admissible at a later trial if the matter does not resolve.

Pleas of guilty that are entered following an agreement in the Criminal Case Conference generally attract a discount on the penalty imposed at sentence of around 15-20%. If the matter does not resolve at the Criminal Case Conference the matter will later be listed in a call over to secure a trial date.

Before the trial, there may be pre-trial applications made and heard by either the prosecutor or accused. These applications can deal with a range of resolving legal issues, including determining the admissibility of certain evidence such as tendency or coincidence evidence. They help ensure a case is ready for trial and can be heard more efficiently by narrowing down the issues to be decided in trial.

The matter will then proceed to trial. Unless the matter proceeds by judge alone, a jury will first be empanelled for the trial. The prosecutor will give their opening, followed by the defence opening. The Crown case goes first, calling all relevant witness, which are allowed to be cross-examined by the defence. Once the prosecution finishes calling all their witness, the defence has the opportunity to call witnesses, including, but not necessarily, the accused. Both the prosecution and defence will give their closing addresses to the court before the jury retires to deliberate.

After deliberation the jury will return verdicts on each count on the indictment of guilty or not guilty. If the jury cannot come to a unanimous, or majority decision on the verdict after significant deliberation, it is considered a ‘hung jury’. It is then a matter for the prosecution to determine whether the matter be heard again for retrial or if they discontinue the charges.

If you plead guilty or are found guilty of an offence, you will have a date set for a sentence hearing for the court to determine the appropriate penalties for the offences. At sentencing, the prosecution and defence make submissions about any relevant considerations and the potential appropriate penalties. Evidence is tendered to the judge including mental health reports or character references, and victims may provide Victim Impact Statements. The court may then impose a sentence that could include a fine, good behaviour order, community service order or an imprisonment sentence, whether fully suspended, an intensive corrections order or full-time imprisonment.