Both magistrates and judges are responsible for presiding over cases in court. Magistrates usually sit in the Children’s Court and the Local Court. Magistrates often hear shorter, less complex matters. Judges usually sit in the District Court, Supreme Court, Federal Courts and appeal courts. Judges deal with more complex matters, for example jury trials and appeals.
A form to complete a Written Notice of Pleading is usually issued by police when a person is charged with an offence and given a future court attendance notice. The form can be completed and sent to the court indicating a plea of guilty or not guilty. The court then determines the outcome based on the police documents and the contents of the form.
Generally, it is not advisable to simply complete a Written Notice of Pleading. It is preferable to appear in court in person, in order for your case to be properly presented and argued. A physical appearance also means that the Court can make orders which it cannot otherwise make in your absence.
If you plead guilty, you will then be sentenced by the court. This may or may not happen on the same day that you enter a plea of guilty. To prepare for sentencing, your lawyer will discuss with you what material should be prepared to be presented to the court. Your lawyer will make submissions on your behalf about the type of penalty to be imposed.
If you plead not guilty your matter will be listed for a defended hearing or depending on the charge in NSW, you will be committed to stand trial in the District or Supreme Court. A defended hearing date is when the court hears evidence and addresses and determines if the charge has been proved beyond a reasonable doubt.
In Australia, it is often state or federal police who lay charges. Making an allegation to police will cause decisions to be made internally as to whether charges are laid against a person/s a complaint is made about. If police decide not to lay charges, an individual can commence a private prosecution. To do this, a court attendance notice form must be completed and signed by a registrar. A court date will then be provided. It is important to consider the consequences of a private prosecution, particularly costs.
The police often hold crucial information about your case. At first, your lawyer may need to speak to police to obtain the paperwork about your charges. The police are also often involved in the investigation of a matter and are involved in collating a brief of evidence as well as making decisions about your bail. Communication between your lawyer and the police is important to the progress of your matter.
A prosecutor often has important paperwork for your case. Your lawyer may need to speak to them to obtain a copy of, for example, your criminal record. Prosecutors are also our opponents in court, so it is important that both parties discuss what will be happening that day to ensure the matter can run as smoothly as possible.
If you have been charged by police, and they have imposed bail conditions or AVO conditions which prohibit contact with your children you should seek urgent advice from a lawyer. In some circumstances, an application can be made to the court to vary the conditions imposed. Criminal lawyers often work closely with family lawyers to help in these circumstances. Working with reputable lawyers early on in both areas is usually critical to the final determination about contact with children.
If you have a lawyer acting for you, they should keep you informed about where your matter is up to and what to expect to happen next. You can also contact the court for details about the orders made on the last court date and the purpose of the next listing.
If you don’t know what is happening with your court matter, the best thing to do is speak to a lawyer. They will be able to explain where your matter is up to and what your options are.
Being charged is the process of being subject to an allegation which is to be determined by a court.
The process of being convicted comes after a plea of guilty or a finding of guilt. The court decides if a person should be convicted of an offence. In certain circumstances the court can find an offence proven and dismiss the charge or discharge an offender without recording a conviction.
In criminal proceedings you cannot be compelled to give evidence – this is commonly referred to as the ‘right to silence’. The burden of proof rests with the prosecution (and rarely shifts). This means it is up to the prosecution to try to prove the case. Exercising the right to silence cannot be used against a defendant. However there are circumstances when it is advisable for a defendant to give evidence, for example often when self-defence is being raised. The decision to give evidence or not is an important one and your lawyer can usually help you when making that decision by explaining the law to you and taking you through the advantages and disadvantages in your particular case.
Assuming you are represented by a lawyer, and you are being sentenced, a magistrate will not usually address you directly but will direct questions to your lawyer. On some occasions, a magistrate or judge may ask you a question directly. When responding to the magistrate or judge, you should stand up and try to just answer the question being asked. If your lawyer thinks there is an issue with the question an objection can be raised on your behalf.
In the ACT criminal court, applications for mental health and cognitive impairment can involve assessing an accused person’s fitness to stand trial or making a plea based on a mental impairment defence. If an accused is found unfit, the court will refer them to the ACT Civil and Administrative Tribunal (ACAT) for an assessment under the Mental Health Act. The court can also consider the mental health defence if the accused argues they were not capable of understanding or controlling their actions at the time of the offence, which is assessed based on expert medical evidence.
In court, if you are addressing a judge or magistrate, you should address them as “Your Honour.”
Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
Most ACT Magistrates Court general criminal lists start from around 9:30am and are usually hear in Magistrates Court Room 1 (MC1). Sometimes your matter may be called first, however, often you will have to wait for other matters to be heard before your matter is called.
The general criminal lists are on Mondays, Wednesdays and Thursdays, these are conducted by a registrar. If matters are ready for sentencing, they can be transferred immediately to a magistrate in another court room, either from 9:30am or 10:00am.
Family violence lists start from 9:30am on Tuesdays and Fridays.
Bail lists in the ACT Magistrates Court are usually heard in MC2 and commence from 10:00am. Matters that are listed for a defended hearing are often listed for a call over before a magistrate with multiple other hearing matters at 9:30am. If the magistrate decides that your matter should proceed that day to hearing they may refer it to start before another magistrate in a different court room at 10:00am or at some later time in the day.
Lunch break is between 1:0pm and 2:15pm.
Most court matters will not sit past 4:00pm – 4:30pm.
You can challenge a licence suspension in the ACT by applying to the Magistrates Court for a stay of the suspension notice under section 61F of the Road Transport (General) Act 1999. You must file this application within 28 days of receiving the immediate suspension notice. To succeed, you must demonstrate that there is an immediate and more than an inconvenience-level need for your licence, such as for medical purposes, and that there are no viable alternatives like public transport.
Generally you cannot have your license disqualification lifted early in the ACT. You can, however, apply to the ACT Magistrates Court for a restricted or probationary license after serving a period of disqualification, but you must prove exceptional circumstances for the court to grant your application.
Potentially. Some driving offences carry maximum penalties that include imprisonment. The type of penalty you receive will depend on a number of factors. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
A drug of dependence is defined in the Drugs of Dependence Act as “a substance prescribed by regulation as a prohibited substance”. Common examples of these substances include, but are not limited to, cocoa leaf, DMT, heroin or MDMA (ecstasy).
Under Section 169 of the Drugs of Dependence Act 1989 (ACT) it is an offence to possess a drug of dependence.
The maximum penalty for this offence is imprisonment for 6 months imprisonment.
Although the maximum penalty is one of imprisonment, imprisonment is a sentence of last resort and are not common for small possession charges. The type of sentence imposed will depend on a number of factors such as the quantity involved, the facts of your case, your criminal history and your personal circumstances.
Yes, instead of being prosecuted for the offence, police can issue a civil infringement notice or divert you to drug or other counselling or treatment if the amount possessed is less than the following amounts for the following types of drugs:
Also, if your possession of a prohibited substance is authorised under the Medicines, Poisons and Therapeutic Goods Act 2008, or another territory law, then the possession is lawful. This means that if you have a licence or approval to possess the prohibited substance, you cannot be charged under this section.
It is possible that the court will record a conviction. The type of sentence imposed will depend on a number of factors such as the quantity involved, the facts of your case, your criminal history and your personal circumstances. However, there are options where the court can find the offence proven but not record a conviction. If you want to understand your chances of avoiding a conviction better speak to a lawyer as soon as possible so that your case can be properly prepared and argued.
Under Section 171AA(1) of the Drugs of Dependence Act 1989 (ACT), if you are under the age of 18 it is an offence to possess:
The maximum penalty for this offence is 1 penalty unit ($275). If you are 18 years or older this conduct is decriminalised and you cannot be prosecuted in court.
Under Section 171AA(2) of the Drugs of Dependence Act 1989 (ACT), it is an offence to possess, whether you are an adult or child:
The maximum penalty for this offence is imprisonment for 2 years.
Self-defence is a defence to certain offences and can be raised to provide that a person is not criminally responsible if what they did was done in self-defence. The test, in short, is whether it was necessary to do what a person did in order to defend themselves or someone else and whether the act was a reasonable response in the circumstances as they perceived them.
In the ACT, affray is a crime under Section 35A of the Crimes Act 1900 that involves two or more people using or threatening unlawful violence in a way that would make a person of reasonable firmness at the scene fear for their safety. It can occur in public or private settings, and the violence or threat does not require physical contact, as words alone can be sufficient. Penalties range up to a maximum of 10 years imprisonment, depending on the number of people involved, according to ACT legislation.
AOABH is an aggravated assault where a person intentionally or recklessly causes another to suffer a physical injury that interferes with their health or comfort. This includes injuries like cuts, bruises, or other harm that is more than transient or trifling.
CRIMES ACT 1900 – SECT 24
(1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
(2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 7 years.
In the ACT, actual bodily harm (ABH) refers to any injury that interferes with a person’s health or comfort and is more than merely transient or trifling. It includes injuries like cuts, bruises, scratches, swelling, and minor fractures, but is less severe than grievous bodily harm. Assault occasioning actual bodily harm is a serious offense, punishable by up to five years in prison.
In the ACT, grievous bodily harm (GBH) means serious or permanent injury, such as brain damage, a fractured eye socket, broken bones, or severe disfigurement. It also includes any injury that, if untreated, would endanger or be likely to endanger life or cause permanent injury to health. The definition can include the destruction of a fetus in certain circumstances.
In the ACT, a wounding offence is committed when a person intentionally or recklessly breaks both the inner and outer layers of another person’s skin, such as by a cut or stab. An intentional wounding is an offence with a maximum penalty of five years imprisonment, while an aggravated wounding can carry a penalty of up to seven years. The injury does not need to be severe or long-lasting, but it must break the skin to a point where the outer layer is broken.
In the Australian Capital Territory (ACT), assault with intent to commit other offences is when a person assaults another with the goal of committing another offense that carries a maximum penalty of five years’ imprisonment or more. This occurs when the assault is a means to another criminal end, such as stealing from the victim.
In the ACT, a choke, suffocate, or strangle offence involves intentionally and unlawfully applying pressure to a person’s neck, obstructing their breathing, or otherwise interfering with their respiratory system without their consent. Penalties vary based on the level of harm and intent, with the most serious offences involving causing unconsciousness to facilitate another crime, which can lead to a maximum penalty of 25 years imprisonment.
Police will take into account the views of the alleged victim when determining whether to withdraw charges. However, domestic violence is a subject with significant community interest. The police and the courts need to balance a number of factors when making decisions to discontinue, withdraw or dismiss charges.
A Family Violence Order is a court order that prevents someone from engaging in, or getting others to engage in on their behalf, family violence towards another family member.
Family Violence is defined in the Act. It is not just physical violence. It has a broad definition that encapsulates a number of different things including any of the following:
The object and purpose of Family Violence Orders are to prevent and reduce family violence, to ensure the safety and protection of people (including children) who fear, experience or witness family violence, and to encourage perpetrators of family violence to be accountable for their conduct. These objects are contained in the Family Violence Act 2016 (ACT) [the “Act”] at section 6.
Family Violence is defined in the Act. It is not just physical violence. It has a broad definition that encapsulates a number of different things including any of the following:
Applications for Family Violence Orders are dealt with in the civil jurisdiction of the Magistrates Court. However, it is very important to note that breaches of both Interim and Final Orders are criminal offences and are dealt with in the criminal jurisdiction.
An offence of breaching a Family Violence Order is contained at section 43 of the Family Violence Act – ‘Contravention of Family Violence Order’ and it carries a maximum penalty of 500 penalty units, 5 years imprisonment, or both.
A Personal Protection Order (PPO) is a court order that prevents a person from engaging in, or causing someone else to engage in on their behalf, personal violence towards another person.
Personal Violence is defined in the Personal Violence Act 2016 (ACT) [the “Act”]. It is not just physical violence. The legislation provides for a broad definition that includes a number of different things. Personal violence can include any of the following:
A person can apply for a Personal Protection Order if they have been affected by Personal Violence by the person they are seeking to take out an order against.
A person can also apply to have their child, or children, added to the Order. However, if the child, or children, are over 18 years of age, they are required to make an application for their own order (section 13A Personal Violence Act 2016 (ACT)).
Yes, they are two different types of orders. Both orders have very similar processes, procedures and protections, however, the most significant difference is who can be a Protected Person and who can be the Respondent.
A Family Violence Order is only made in relation to persons who are family members, or have an intimate relationship. In all other circumstances, a Personal Protection Order is the appropriate Order. An example might be a neighbour, colleague or acquaintance.
You will likely have to go to court for a FVO or PPO matter in the Australian Capital Territory (ACT), especially for a final hearing or if the respondent opposes the order. You are expected to appear for preliminary conferences and hearings, although you may be able to apply to appear remotely (by phone or video link) for safety reasons or if you have legal representation.
Being on bail means you are at liberty in the community while waiting for your matter to be finalised by the court. Being on bail often includes conditions which you must comply with. Bail conditions can include conditions such as where you must live, places you cannot go to, curfew restrictions, reporting to a police station, and many others. How strict bail conditions are will often depend on the seriousness of the charges.
If you have been granted bail by the police or the court, often there will be conditions attached to your bail. If you were granted police bail, the police should have provided you with a copy of your bail conditions before leaving the police station. You can request a copy of your bail conditions from the court registry.
An application can be made to the court that your matter is being heard in to have your bail conditions varied. To do so, the prosecutor needs to be out on notice of the application so that they can advise whether they will consent (agree) to or oppose the application. The application is then determined by the court.
To vary your bail conditions in the Australian Capital Territory, you can apply to the court yourself by completing a “Request to Vary Bail Conditions” form at the Director of Public Prosecutions (DPP) office in Canberra City, or have a lawyer submit the application for you. It is strongly recommended to speak with a lawyer before making an application, as they can provide legal advice and assistance to help formulate a reasonable and practicable set of conditions.
If you fail to comply with your bail conditions, the police may arrest you for being in breach of bail. There is a possibility that your bail may be revoked, and you are sent into custody as a consequence of this. In some instances, where there is a breach of bail established but the prosecution do not make an application for your bail to be revoked, the court may record the breach of bail on the court file, which can be taken into account if you are ultimately sentenced for the matter that you are on bail for.
Surety is a condition that may be imposed on a person’s bail. Surety involves either an actual deposit or a promise to forfeit a set amount of cash if the defendant’s fail to appear at court. A surety condition is sometimes imposed on bail where the court determines that the defendant is a ‘flight risk’ to ensure that there is a consequence of not appearing at court when required to do so. The person who is the surety can be a nominated acceptable person or can be the defendant themselves.
In the ACT, a non-conviction order is when a court finds an offense proved but chooses not to record a formal conviction, meaning there is no criminal record for that specific offense. This is an exceptional outcome under Section 17 of the Crimes (Sentencing) Act 2005 and can be achieved either through a simple dismissal or by imposing a Good Behaviour Order with no other penalties. The court makes this decision based on factors like the offender’s character, age, the seriousness of the offense, and any extenuating circumstances.
A community-based order in the ACT is a sentence served in the community instead of in custody, and it involves a range of conditions that the offender must follow. These orders can include community service hours, treatment programs, supervision, paying compensation, or staying away from certain people or places. They are a form of penalty that aims to rehabilitate offenders while keeping the community safe.
Intensive Correction Order
An Intensive Correction Order (ICO) is a sentence of up to 4 years that is served in the community instead of in custody.
If you are sentenced to an ICO, in addition to the core conditions, you will need to:
You may also need to:
Drug and Alcohol Treatment Order
A Drug and Alcohol Treatment Order (DATO) is a sentence of between one and 4 years that is served in the community instead of custody. Part of the order focuses on reducing your alcohol or other drug use.
If you are sentenced to a DATO, in addition to the core conditions, you will need to:
Suspended Sentence Order
A Suspended Sentence Order (SSO) is a sentence to custody which can be partially or fully suspended.
If your sentence of custody is partially suspended, you will go into custody for a period of time set by the court. Then you will serve the rest of your sentence in the community.
If your sentence to custody is fully suspended, you can serve your whole sentence in the community.
If you get an SSO, you will also have a Good Behaviour Order, you will need to meet the conditions of the GBO to stay out of custody.
Good Behaviour Order
A Good Behaviour Order (GBO) can be given for different types of offences, including less serious offences.
In addition to the core conditions, you can be ordered to do other things, which may include:
Parole order
If you are granted parole, you can serve the remaining time of your sentence in the community, under the supervision of ACT Corrective Services Community Operations.
In addition to the core conditions, you will need to:
There may be more conditions to protect the victim or support you. They could include:
Community Service Work
You may have to do community work as part of your Intensive Correction Order or Good Behaviour Order. This gives you the opportunity to give back to the community and helps to develop skills that could help get a job.
The amount of community work can be between 20 and 500 hours and could include:
In the ACT criminal court, a fine is a financial penalty imposed by a court for an offence, in addition to any fees and levies. The court will specify the payment timeframe, which can range up to 12 months, or the court can set up a payment plan for you. If you fail to pay, the court may issue an enforcement order or imprison you.
Yes, you can appeal a decision in the ACT if you are unhappy with the outcome, but appeals must be based on specific errors of law that occurred during the original hearing. To start an appeal, you must get legal advice, complete the required forms, and file them with the ACT Courts within a specific timeframe.
A conviction appeal is lodged when a person in the ACT has been found guilty of a crime at the Magistrates Court and wishes to appeal against this conviction in an attempt to overturn this finding at the Supreme Court. It is not a new hearing, and it requires you to establish a legal or factual error in the Magistrates Court in order to be successful in the appeal.
Any appeal from the ACT Magistrates Court to ACT Supreme Court must be made within 28 days of the conviction or final sentence being handed down, whichever is later.
The judge of the conviction appeal in the ACT Supreme Court may:
A severity appeal from the ACT Magistrates Court to the Supreme is filed when you plead, or are found guilty, of an offence at the ACT Magistrates Court but you wish to appeal against the severity of the penalty imposed. It is not a new hearing, and it requires you to establish a legal or factual error in the sentencing process or in the final penalty imposed.
If your appeal is successful the Supreme Court judge will likely resentence you to a less severe sentence. If error was established in the sentencing process the court must resentence you unless it is of the view that the penalty imposed was nonetheless appropriate. If unsuccessful the original sentence will remain in place.
“Beyond reasonable doubt” means the prosecution has to present such strong evidence that there is no other logical or reasonable conclusion to be reached from the evidence presented except that the accused is guilty. It is the highest standard of proof in the criminal justice system and does not require absolute certainty, but it requires the court to be firmly convinced of the defendant’s guilt, with no reasonable doubts remaining.
In criminal matters, the prosecution has the burden of proving the guilt of someone charged with an offence. They must prove a person’s guilt of each element of an offence beyond reasonable doubt – this is an extremely high standard. Generally there is no obligation on a person who has been charged with an offence to prove anything (although there are some exceptions to this).
An indictable offence is a serious offence where the maximum penalty imposed can exceed two years. Generally, these matters are dealt with in the District or Supreme Court however, depending on the nature of the offence, they can also be dealt with in the Local Court. If your matter is a strictly indictable offence it can only be dealt with in the District or Supreme Court.
A summary offense is a less serious crime that is heard in a lower court, such as a Magistrates’ Court, and is not tried by a jury. These offenses are outlined in acts like the Summary Offences Act and include minor offenses such as traffic violations, minor assaults, and public disturbance offenses. The penalties are generally less severe than for indictable offenses, typically involving a maximum of two years imprisonment or a fine.
In the ACT, a lawyer is a broad term for any legal professional, while solicitors and barristers are types of lawyers with distinct roles. A solicitor is typically a client’s first point of contact, handling general legal advice, document drafting, and case preparation, often in lower courts. A barrister is a specialist in courtroom advocacy and is usually engaged by a solicitor for more complex or serious cases, such as trials and appeals.
If your matter has been adjourned this means it has been listed on another date in the future. There are many reasons as to why your matter may be adjourned.
Instructions can mean a variety of things. Broadly, instructions are how you would like your case to proceed. Depending on the case, your instructions can also include your version of events about an allegation.
In some instances, the one lawyer can act for co-accused. However, it is often best that co-accused have separate legal representation. If co-accused give incompatible instructions, this will mean that the lawyer is conflicted out and would only be able to act for one accused in that instance. To avoid that issue arising, it is often best to start with separate lawyers.
You should ensure that you bring all paperwork in relation to your matter to your meeting. This can include the Court Attendance Notice, facts, documents relating to bail and order documents. If you have photos or documents that assist your case you should bring those along to your meeting. It is a good idea to write down any questions you have for your lawyer prior to meeting with them.
A costs agreement is a document that sets out the legal fees involved in your matter. A costs agreement may refer to fixed or not-fixed fees. If you receive a costs agreement, you should read the document carefully and speak with your lawyer or seek independent legal advice if you have any questions about its contents.
If you ask a lawyer to attend a police station following your arrest, a police officer can administer you a ‘special caution’ if investigating a serious offence. A ‘special caution’ means that if you refuse or fail to tell police something that you later rely on in court, this may be used against you. It can only be given if your lawyer is present with you at the police station. Because of this, it is usually in your best interests for a lawyer not to attend the police station while you are there.
Tendency evidence refers to evidence that is sought to be relied on to try to prove that a person has a tendency to act in a particular way or to have a particular state of mind. An application for tendency evidence to be relied on is more often made by the prosecution than a defendant. The prosecution may seek to rely on tendency evidence to try to show, for example, that a defendant behaves violent when in a particular scenario and the court can rely on that evidence to suggest that the defendant also acted in the same manner at the time of an alleged offence.
The law allows for the court to take into account evidence of a defendant’s good character when assessing whether a charge has been proven beyond reasonable doubt. Good character, in legal terms, usually means that the defendant does not have a criminal record but can include other evidence about their positive attributes. This fact, if raised in evidence, can be used in two ways to assist the defendant. First, to say that a person with good character is unlikely to have committed the offence alleged. Second, to support the defendant’s credibility in the sense that they are less likely to lie about their version of events. If you do not have a criminal record and are pleading not guilty to a charge, this can be a valuable tool in the defence of your case.
In court, if you are addressing a judge or magistrate, you should address them as “Your Honour”.
Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
The ACT Magistrates court usually sit between 9.30am and 4.00pm. On some occasions, your matter will be given a ‘marking’ to start at a different time of day. Your lawyer will tell you if this happens in your case. Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
Your lawyer will let you know what time you should meet them at court. Most matters are listed at 9.30am so it is best to get to court before then.
For some court listings, you may be excused from attending if you are legally represented. Depending on what your matter is listed for, you may still be required to attend with your lawyer.
Dress presentably and neatly. Corporate attire such as a suit is usually advisable. If you do not own a suit, clean pants and a button up top is good.
Your matter will be heard in either the ACT Magistrates Court or the ACT Supreme Court, depending on the severity of the case. The Magistrates Court handles less serious criminal matters and civil cases up to $250,000, while the Supreme Court hears more serious criminal cases and civil disputes over $250,000, as well as appeals from the Magistrates Court. To be certain, check the court list or contact the court directly.
Check court lists: The ACT Courts publish daily lists online that show which matters are scheduled for both the Magistrates and Supreme Courts.
If you are unwell, you should advise your lawyer as soon as possible so that arrangements can be made, and the court can be notified if necessary. You should not attend court if you have flu symptoms. You may be required to obtain a medical certificate or other evidence of illness.
How long you will be at court on a particular day will depend on a number of factors. In particular the type of listing will be the main factor. If your matter is listed for mention, your matter is likely to be finished for that day before 11.00am. If listing for sentencing it may take longer and not finish until before lunch at 1:00pm.
The main people who will be in the courtroom include: the bench (such as the magistrate or judge), a court officer, a sound recording person, a prosecutor, your lawyer and yourself.
Australia’s court system is based on ‘open justice’. All courtrooms are open to the public, except for those which are ‘closed courts.’ A closed court is usually saved for when a child is giving evidence or evidence is being given in relation to allegations of a sexual nature.
No. You should always ensure that your phone is turned off before entering the courtroom.
If the magistrate does not let your lawyer finish his or her submissions, it may be because they have read the written material provided or already heard enough from your lawyer to sentence you. Sometimes a magistrate does not require your lawyer to make oral submissions at all. This is usually because your written material alone has convinced the magistrate to deal with your matter in the way requested by your lawyer.
Yes. Courtrooms are open to the public and you can bring your family to court with you for support. You should speak to your lawyer about whether a family member will be permitted to enter the court building you are attending.
If you do not understand why something happened in court or what the magistrate or judge said, you should ask your lawyer to explain it to you. Your lawyer is there to help you and ensure you know what is happening at each stage of your court matter.
Your lawyer is in court with you to advocate on your behalf. Any substantive questions will be directed to your lawyer and your lawyer will respond. If a magistrate addresses you directly while you are being sentenced in the Local Court, it will likely be a simple question, for which a simple response is required. For example, the magistrate may ask you whether you understand the seriousness of your matter.
If a judge or magistrate asks you a question while you are giving evidence, it will usually be to clarify something you just said. You should answer any questions, as it will assist the court.
Whether you need to notify your work about being charged or convicted will depend on your specific work contract. You should carefully review the conditions of your employment contract and obtain legal advice about whether you have disclosure obligations with your employer.
Again, this will depend on the particular conditions of your employment.
Your lawyer can only talk to your family about your matter if you give them permission to do so and if there is no conflict of interest.
If you are found guilty, the court is required to sentence you. Sentencing can occur on the same date that you are found guilty, or the matter may be adjourned to a later date for sentencing. The sentencing exercise requires the court to balance objective factors about the offence(s) with subjective factors about the defendant. Each offence has a maximum penalty that the court may impose.
If you are penalised with a fine, you have 28 days to pay. Following being sentenced, you will receive a letter in the mail from the court outlining the fine you have been ordered to pay. If you cannot pay the fine upfront, you can apply to the court for a ‘Time to Pay’ Order. If granted, this order allows you to pay your fine in instalments. If you receive Centrelink assistance, the instalments will be deducted from your Centrelink payments using the Centrepay program.
The most important thing to remember if you are arrested by police is to not resist or get into a dispute with them. This applies even if you think you have been wrongly arrested. When a police officer arrests you they should tell you their name and place of duty, that you are under arrest and the reason why. You can also ask them for this information.
After you have been arrested, you will be taken to a police station where you will be given a document that sets out your rights. You should take your time to read this document. Importantly, it is your right to contact a lawyer and/or a family member or friend to let them know you have been arrested and police will facilitate this.
No, the police cannot search your residence in the ACT automatically; they generally need a warrant, although there are exceptions where a warrant is not needed, such as in an emergency, if you are arrested, or if they reasonably suspect evidence will be destroyed. You have the right to refuse entry if you do not consent to a search, which would require the police to have legal grounds for entry, such as a warrant or an emergency.
Yes, police can search your vehicle in the act in the ACT if they have reasonable suspicion. This means they must have more than a hunch, but less than a firm belief, that the vehicle contains something relevant to a criminal offense, such as stolen goods, a dangerous drug, or items used in a crime. Alternatively, police can conduct a search if you consent to it, even if they have no reasonable grounds.
Yes, the police can search you if they have reasonable suspicion that you are carrying illegal items, stolen property, or evidence of a serious crime, and the search is necessary to prevent the item from being hidden or destroyed. They do not have a right to conduct random searches.
When you are arrested and taken to a police station, your personal belongings (including your phone) will generally be taken and held by police while you are in custody. Before police start any investigation or questioning, you have the right to contact a friend, relative, guardian or lawyer to inform them of your whereabouts, and have them attend the police station if that is what you would like.
If you ask for a lawyer at an ACT police station, you have the right to speak with one before answering any questions or participating in an interview, and the police must allow this. They will be required to give you the opportunity to contact a lawyer, and you should not be interviewed without a solicitor present unless you choose to waive that right.
You should provide your name, address, and date of birth if asked, but can exercise your right to silence on all other questions until you have spoken with your lawyer.
If you have been arrested by police you do not have to answer any questions a police officer may ask about the offence for which you have been arrested (or anything else). A police officer should inform you of this and also warn you that anything you say to them may be used in evidence against you. It is a decision for you about whether you answer a police officer’s questions. We always recommend seeking legal advice before speaking to police. You should advise police that you wish to speak to a lawyer before you answer any questions. Generally, we advise that you should exercise your right to silence however each case is different and it is important to get legal advice about this.
Generally you are not under any legal obligation to answer Police questions. However, there are some circumstances where you have to answer a police officer’s question. Some examples include:
It is important to remember that if a police officer stops you to ask for your name or address they must give their name and place of duty, explain why they are asking and give a warning that it can be an offence not to comply.
Beyond these specific and narrow circumstances it is generally best to exercise your right not to speak with police until you have spoken with your lawyer.
A police officer can ask you to disclose your identity if:
The court or DPP (depending on the jurisdiction) can arrange an interpreter for you free of charge. You will need to notify your lawyer or the court that you require a lawyer and what language.
NSW Courts endeavour to provide assistance for people with physical disabilities. If you do not have a lawyer, you can contact the court registry in advance of the date you need to attend and ask them to provide you with assistance such as hearing loops, wheelchair access, support people, interpreters and large print documents.
The Justice Advocacy Service (JAS) is run by the Intellectual Disability Rights Service (IDRS). This service supports people with intellectual disabilities that come into contact with the justice system such as victims, witnesses, suspects or defendants. This service is available across NSW 24 hours a day, 7 days a week on 1300 665 908. It is recommended that you contact JAS well before your court date so that the appropriate assistance can be arranged.
It is very useful for your lawyer to know if you have a mental illness. The court can take into account your mental health issues in determining the best way to deal with your matter. This can sometimes mean diverting you away from the criminal justice system and into mental health treatment. Your mental health will also be relevant if the court is sentencing you for an offence and can reduce any sentence that you may receive. If your lawyer is aware of your mental illness, they can ensure that the court is properly aware of your mental health issues and can appropriately consider your mental health when finalising your matter.
A jury is a group of usually 12 people selected at random from the community who will hear all of the evidence in a trial and then as a group decide on a verdict of guilty or not guilty. Before hearing the evidence in a matter, jurors must either swear an oath or give an affirmation to deliver a true verdict in accordance with the evidence.
A jury will likely hear your matter in the ACT if you are facing a serious criminal charge in the Supreme Court and have pleaded not guilty. For less serious offenses, the matter will be heard in the Magistrates Court, where a magistrate decides the verdict, not a jury. In some cases in the Supreme Court, a “judge-alone” trial may occur instead of a jury trial, especially if the defendant elects to have it this way.
If your matter is going to be heard by a jury, there will be a process called ‘empanelment’. Empanelment occurs with a pool of potential jurors being brought into the courtroom. The judge will then give a short summary of what type of matter it is, and the names of the lawyers and witnesses involved. At this point, there will be an opportunity given for you to speak up if you know anyone on the jury, or if the potential jurors know anyone in the room or names that have been mentioned.
You should not discuss the matter or your evidence with other witnesses either before or during the trial or the hearing of the matter.
If you are required to attend court as a witness you should be served with a subpoena that will provide you with the time and the date you will be required to attend court and the court location. If you are concerned about the evidence you will have to give in court, you may like to consider getting independent legal advice. There are support services available for prosecution witnesses including Victim’s Services (P: 1800 633 063) and the Witness Assistance Service (for matters that are being prosecuted by the Office of the Director of Public Prosecutions).
A prosecution witness is usually someone who has spoken to police in relation to a matter and provided a statement about what they witnessed. Prosecution witnesses generally include both police and civilians. If your matter is contested, the prosecution will, generally, ask these witnesses to come to court and give evidence. You can find out who these witnesses are by looking in the police brief and there is a section which lists the witnesses. If you are unable to locate the witnesses, the officer-in-charge of your matter will know who they are.
You can communicate with someone on remand in the ACT by phone, video call, email, mail, and in-person visits, but you should first book a visit or find out the correct procedures for each method by contacting the ACT Corrective Services or visiting a detainee at the AMC.
To ensure a person on remand has access to medication, have them request to see a doctor at the Alexander Maconochie Centre (AMC) to get the prescription filled, and you can contact the AMC’s Community Operations general enquiries to follow up. You can also reach out to the ACT Government’s Community Operations or the Hume Health Centre directly for specific health-related inquiries.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney), (02) 5104 9640 (Canberra) or (08) 6255 6909 (Perth) or by email at [email protected]
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
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At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
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