If a family member or friend has been charged with a criminal offence, a decision will be made about whether they should be released from police custody on bail, or whether they will be refused bail by police.
If you enter a plea of not guilty to criminal charges before the Local Court, your matter will proceed to a defended hearing.
A defended hearing takes place after you plead not guilty to a charge or series of charges. Defended hearings are held in the Local Court and allow your solicitor to test the prosecution case. Your solicitor will do this by highlighting the flaws of the case against you by questioning the credibility and consistency of the evidence and prosecution witnesses. Alternatively, your solicitor may accept parts of the case against you and raise a defence which justifies your actions.
The level and type of preparation required will vary based on the type of offence which you have been charged with. Therefore, your solicitor will advise you of recommended programs that you should take-part in.
Your solicitor may request that you:
You can expect your solicitor will thoroughly review the brief of evidence. This will allow your solicitor to identify the elements of the offence which may not be proven beyond a reasonable doubt due to a lack of supporting evidence. Your solicitor will also consider potential defences that may be available to you. However, the particulars of your solicitor’s preparation for a defended hearing will vary depending on the nature of the allegation.
In preparing the defence case, your solicitor may do the following:
Generally speaking, a defended hearing will proceed in the following order:
If you are a witness, you will be expected to take an oath or affirmation prior to giving evidence. You will then be examined by the party who called you (i.e. if you are a defence witness, the defence solicitor will examine you). This is referred to as examination-in-chief and the evidence you provide is referred to as evidence-in-chief.
Once the examination-in-chief concludes, you will be cross-examined by the opposing representative. The cross-examiner will ask questions that challenge the evidence you provided in chief.
Once cross-examination is finalised, the party who called you as a witness may decide to re-examine you to clarify points raised during cross-examination.
Whenever the Magistrate is on the Bench, you should bow once you enter or exit the Courtroom. If the Magistrate is not on the Bench, you should take a seat and stand up once the Magistrate enters the Courtroom. Once the Magistrate bows, you are to also bow.
If your hearing has commenced, you are not to leave the Courtroom unless otherwise instructed. If your matter has not commenced, you should confirm with your solicitor if it is a suitable time to leave the Courtroom.
Once both the Prosecution and Defence have concluded their closing statements, the Magistrate will then determine the verdict. The Magistrate may:
In reaching a verdict, the Magistrate will determine whether the legal burden was discharged (i.e. whether the Prosecution proved the elements of the offence beyond reasonable doubt).
If the prosecution is successful, the Magistrate will return a guilty verdict. If the prosecution is unsuccessful, the Magistrate will return a verdict of not guilty.
If you are found guilty, the Magistrate may take the following into account when sentencing you:
The facts assist the Magistrate in determining the objective seriousness of your offending. Imagine a scale of seriousness created by all the conduct that may fall under the offence you are convicted of. Objective seriousness is where your conduct falls on that scale.
Being breath tested after being pulled over for disorderly driving is more objectively serious than if you were simply breath tested at a breath testing station.
Punching someone in the face multiple times where the person suffers from a busted lip is more objectively serious than if you pushed the person who then suffered from a busted lip.
The more objectively serious your offending, the more likely that the Magistrate will impose a harsher sentence.
The extensiveness of your criminal/traffic record and whether you have been convicted of the same or similar offence may influence the Magistrate’s decision. This would give the Magistrate an idea of your risk of re-offending and the truthfulness of any remorse you may express over your conduct.
Your personal circumstances
Your personal circumstances include factors which may have contributed to your offending or the impairment of your judgement at the time of committing the offence. These circumstances can include (where relevant):
Material may be tendered to the Court which outlines your good character and upstanding reputation in the community. Generally speaking, this mostly assists first-time offenders and offenders with a low rate of re-offending.
Intervention programs or rehabilitation/treatment
This includes whether you have completed or are about to complete an intervention program or rehabilitation (e.g. traffic offenders’ program, anger management program, drug and alcohol counselling, etc.). It is important that you prove your participation or completion of the program/treatment to the court as it may indicate the following:
Sentencing Assessment Report
A Sentencing Assessment Report assesses your suitability for the following:
Q: I was found guilty and convicted but I think I am innocent, can I appeal?
A: If you have been convicted of an offence in the Local Court, you can appeal to the District Court to have your conviction overturned. This appeal is known as a Conviction Appeal and you have 28 days to file this appeal from the date of conviction.
The sentence that was imposed is too harsh, can I appeal this sentence?
If you have been convicted of an offence and subsequently sentenced in the Local Court, you can appeal the severity of your sentence to the District Court. This appeal is known as a Severity Appeal and you have 28 days to file this appeal from the date of sentence.
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.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
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.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.