WHAT CAN YOU EXPECT IF YOU DECIDE TO GO TO COURT?
Going to court to contest a traffic offence can be daunting, especially if it is your first encounter with the legal world. If you know what to expect and you understand the process ahead, it makes it much easier to navigate your way from the first court date until the end of your matter.
Your experience will differ depending on whether you plead guilty or not guilty; and whether you are represented by a lawyer, or appearing on your own. In this article we will aim to give you an idea of what to expect.
Your first appearance
In NSW traffic matters are often first heard before a registrar. You will be asked whether you are pleading guilty or not guilty. This is an important decision. Pleading guilty could count in your favour when the court considers an appropriate sentence. If you are unsure about how to plead, ask the court for an adjournment and seek legal advice. If you intend to plead guilty, you (or your lawyer) should inform the registrar. Your matter will be referred to a magistrate for sentencing. If a lawyer represents you, you don’t have to say or do anything.
What will happen in court if a lawyer represents you?
Your lawyer will confirm that you are pleading guilty.
When your matter is called, your lawyer will indicate that you should stand up so that the Magistrate can see you. It is important to make a good impression. You will be allowed to sit down again.
The prosecutor will present court documents to the Magistrate. It will include a fact sheet and if relevant, your criminal and/or traffic record. Your lawyer will hand up any references.
The Magistrate will read what the prosecutor and your lawyer have handed up to court. Your lawyer will then have the opportunity to make submissions to the court.
After your lawyer addressed the court, the Magistrate will talk. You should stand up whenever the Magistrate is speaking to you.
Usually the Magistrate will proceed with handing down a decision and impose a sentence. You will not need to speak before or during sentencing. If however the Magistrate asks you a question, have must reply honestly. When speaking to the Magistrate you address him/her as your Honor. Always answer politely.
If you do not understand the question, or don’t know how you should answer, you may ask to consult with your lawyer.
Do not argue with the Magistrate or pass comments during the session. If you are unhappy with your sentence, consult with your lawyer afterwards, outside the court room. Your lawyer can advise you about your right to appeal and your prospects of success on appeal.
What will happen in court if you are representing yourself?
Firstly the Magistrate will confirm that you are pleading guilty.
The prosecutor will tender some documents to the magistrate, including a fact sheet, your criminal record and traffic record, if relevant.
If you have references, you need to address the magistrate at this point and say that you would like to hand up some references. Remember to address the magistrate as “your Honor”.
After handing up your references, sit down and wait for the magistrate to read all the documents presented to the court.
The Magistrate will ask if you would like to say anything. This is your opportunity to tell the court what you would like to say. You might feel that you won’t know what you should or shouldn’t say. The following guidelines could assist you:
- Be truthful, respectful and polite.
- Plan what you want to say beforehand; make notes of your relevant points. On the day you might be nervous and forget an important point.
Include the following:
- Personal information – age, marital status
- Details of your employment and work history
- Academic or Sporting Achievements
- Volunteer or charitable work
- Explain to the court why you committed the offence – keep it short and relevant. Magistrates deal with offenders every day, they have the experience to see through any “excuses” that doesn’t make sense
Knowing what not to say is almost as important as what say. Don’t exaggerate; don’t compare your case to other similar cases. Just stick to the relevant facts of your case.
After both sides had an opportunity to have their say, the Magistrate will proceed to sentencing. Do not speak whilst the magistrate is sentencing you, unless you are specifically asked. Even if you disagree with the sentence, do not address the magistrate. Speak with the court staff afterwards about an appeal.
In deciding on the appropriate penalty, the magistrate will consider all the facts presented to the court. The submissions made by you, or your lawyer, and the facts presented by the Police will be considered before imposing a sentence. The magistrate may sentence you immediately, or may postpone the matter for a Pre-sentence report. The court may also refer you to a traffic offender program.
What is a Pre-sentence Report?
The court may adjourn your matter for 6 weeks to obtain a full pre-sentence report; alternatively the court can adjourn your matter for a few hours to obtain an oral pre-sentence report. These reports are prepared by a Probation & Parole service officer. The officer will interview you and then prepare a report. The report will include your comments about why you committed the offence and it will also provide the court with information about your background.
The officer will make recommendations to the court regarding an appropriate sentence. It speaks for itself that you should co-operate fully with the officer.
Section 10 Crimes (Sentencing Procedure) Act
In limited cases the court may dismiss the charge against you, even though you pleaded guilty. It means that the case against you was proven, but dismissed. You are not convicted, and for some traffic offences you will not be disqualified from driving. Your dismissal can be unconditional or it may be made conditional. For example, the court may state that you have to be of good behavior for a specific period of time. If you don’t comply with good behavior in this time, you may be called back to court to be sentenced for your original matter.
If your matter was not that serious, the court may impose a fine. The Act will stipulate a maximum penalty and the court may not impose a fine of a higher amount. You have 28 days after the court order to pay the fine. The court does not have discretion to grant you an extension to pay the fine, but you can lodge an application with the Court office for more time to pay the fine.
Good behavior Bond
The court can order that you have to be of good behavior for a specified time. If you comply, there is no further penalty. If you don’t comply, you may be called back to court and be resentenced for the offence.
Community Service Order (CSO)
Community Service Orders can take two forms. You either have to work at a place specified by Probation and Parole, with no compensation; or you have to attend a course, such as an Anger Management course, at a specified Centre. Before the Court will consider a CSO you have to be assessed by an officer of the Probation Services to determine if you are a suitable candidate for a specific order. Certain medical conditions could for example render you unsuitable for certain programs.
The Court can order that you serve 2 days a week in prison. This could be over the weekend or during the week and you may have to do some unpaid work during the period of detention.
The court may decide to suspend your sentence of imprisonment on condition that you are released on a good behavior bond (recognizance) for a period of five years. This means the court imposes a full time imprisonment sentence, but you don’t have to go to prison if you adhere to the good behavior bond for five years.
Deferred sentence – Section 11 Crimes (Sentencing Procedure) Act
The court may decide to adjourn your sentencing, with or without conditions, for a maximum period of twelve months. This could happen where the court wants to offer an offender the opportunity to rehabilitate themselves from drugs or alcohol. The matter will be adjourned to a later date, when the offender will reappear in court and the court will look at the current circumstances before imposing a sentence.
Sentencing: Character references
When sentencing you, the court will consider any character reference presented to the court. It speaks for itself that a well drafted reference can have a positive impact on the sentence imposed by the court. It might be useful to remember the following in preparing a character reference.
The format of a character reference
In the Local Court address the reference to “The Presiding Magistrate”
In the District or Supreme Court address it to “The Presiding Judge”
The salutation is “Your Honour” not Dear Sir/Madam
If possible use an official letterhead
The reference should be typed
The reference should state the charge and that he/she is aware of the specific offence
What should be included?
Instead of just stating a list of good characteristics, the reference should be specific and use examples of where the person demonstrated these characteristics in real life situations. If the reference states that you are generous, it can be illustrated by referring to an example. This will have a far better impact on the sentencing.
If your character reference is your employer, and the loss of your licence may impact on his/her business, it should be specifically mentioned.
If you might lose your job as a result of losing your licence it should be stated clearly.
If your reference is personally aware of difficulties that you will suffer as a result of losing your licence, these difficulties should be stated.
State how long you have known the person
If the reference is aware that the offender has suffered anxiety as a result of the being charged or has expressed remorse, these observations should be included.
If there are any personal circumstances that caused the offender to commit the offense, it should be stated.
What should not be included in the reference?
Do not say anything that is not true; for example, you cannot say this conduct is completely out of character, if the offender was previously convicted for a similar offence. Misleading the court is an offence.
Do not suggest any penalties
Do not criticize the victim or the law
Do not make speeches or submissions
PLEADING NOT GUILTY
Your first appearance
You or your lawyer should inform the court that you are pleading “not guilty”. If your lawyer is not present, and you intend to get one for the hearing, you should get his/her available dates for the next court date.
If a lawyer represents you, you might not need to be present at this first appearance, also referred to as a “court mention”. Check with your lawyer before the appearance date. If you are representing yourself, remember to refer to the registrar as “registrar”.
After noting your “not guilty” plea your matter will be adjourned for about 4-6 weeks. This allows the Police time to prepare a brief of evidence. Such a brief will contain all the evidence that the Police will use in their case against you at the hearing. If evidence is not included in this brief, the Police will generally not be able to rely on such evidence. The Police may not call additional witnesses/evidence if such evidence was not included in the brief and served on you 28 days before the hearing.
However, the court does not always hold the Police to the 28-day time limit. If they can provide a reasonable excuse for not serving the brief timeously, the Registrar may give them further time to serve the brief. You may be able to get your legal cost paid by the Police Force if they failed to serve the brief when they should have.
Your second appearance
If, after receiving the brief of evidence, you still want to plead not guilty, you, or your lawyer, should ask the registrar for a hearing date. If your lawyer is not present, you should obtain their available hearing dates before your second court appearance.
You will be asked to identify which witnesses you want to cross-examine by completing a court listing advice; and you will be asked to estimate how long your hearing will take. You may be asked what is in dispute.
If you would like to use other documents to help you in your case, you may have to subpoena a person/organization to produce such documents. The subpoena must be very specific. If you don’t draft it carefully, you might be precluded from accessing certain documents. Give yourself plenty of time to inspect the documents prior to the hearing, by requesting a further mention date, prior to the hearing date. On this date, before drafting the subpoena, inspect the documents thoroughly and make sure that your subpoena covers all relevant aspects.
At the Hearing
The Burden of proof
In most cases you do not have to prove anything. The Police must prove that you are guilty beyond a reasonable doubt. You are presumed innocent until proven guilty. If, after hearing all the evidence, the Magistrate has a reasonable doubt whether you are guilty, you must get the benefit of that doubt, and the case against you must be dismissed.
The Police Case
To present the police case, the Police Prosecutor will call witnesses to try and prove that you committed the offence. These witnesses will first give their “evidence in chief”. The prosecutor will ask these witnesses to provide certain evidence and you or your lawyer may object to certain types of questions asked by the Prosecutor. The rules of evidence are often technical, and we are not able to deal with that in detail in this article.
After the witness is finished with his/her “evidence in chief”, you or your lawyer, will have the opportunity to cross examine the witness. This is your opportunity to “break down” the witnesses’ story and to prove your innocence, or at least create reasonable doubt about your guilt. Good cross examination skills develop with years of experience. When seeking legal assistance, look for a lawyer with experience in criminal hearings. If you are representing yourself, you need to plan your cross examination questions carefully in order to test the witness’ evidence.
After cross examination, the prosecutor will be able to re-examine the witness to clarify any answers given during cross examination.
After presenting all the evidence, the Police Prosecutor will close the Police case.
After closure of the Police case
At this stage of the case, before you have to answer the Police case, the Magistrate must decide if there is a prima facie case against you. This means that the Magistrate has to decide if you could be lawfully convicted of an offence if he/she takes the Police case at its highest. You or your lawyer is allowed to make submissions as to why you could not be convicted at this stage. You can make these submissions without giving evidence. If the Police case is weak, you lawyer may decide not to call you to give evidence. This is always a difficult decision. You have to carefully consider the strength off the police case against you before making such a decision.
The Defense Case
This is your opportunity to present your case. If you are planning to give evidence in your own case, you will normally testify first. Your lawyer should ask you certain questions so that you place all the relevant evidence before the court. Try and relax, be natural and just tell your story as you remember the events.
If you are representing yourself, plan your evidence. After giving your evidence, take your time to consider if you have mentioned all the relevant facts, before you end your testimony.
The prosecutor will now have the opportunity to cross examine you. This could be one of the most stressful experiences of your life. Your lawyer will prepare you for what to expect, but the following tips might also be helpful.
Keep your answers short. If you can answer “yes” or “no”, do so.
Don’t exaggerate, simply state the facts
Don’t argue with the prosecutor
Don’t make speeches
Don’t make statements about the police witnesses; your lawyer will address this after your case.
If you cannot remember, say so.
If you do not understand a question, ask the Prosecutor to repeat the question
If you become upset, or anxious, you may ask for a glass of water or a short adjournment to compose yourself
Always wait a few seconds before answering a question; if your lawyer needs to object to the question, it will give him/her the time to do so
After you have closed your case, the Police Prosecutor will make submissions to the court. Then you, or your lawyer will make submissions.
The Magistrate will make a decision after hearing and considering all the evidence and all the submissions. You can be found guilty or not guilty.
If you are found not guilty, you may be able to claim your legal costs, depending on the nature of your case. If you are found guilty, your case will proceed to sentencing.
See Sentencing and Possible Penalties above.
How long will your case take if you plead not guilty in the Local Court?
Your first court appearance will usually be 4 weeks after your arrest. The police will be ordered to serve the brief of evidence on you, or your lawyer.
About 4 weeks after the first court appearance, you will attend a conference with your lawyer to discuss the brief of evidence.
Generally 6 weeks after the first court appearance, you will attend your second court appearance. You or your lawyer will confirm that you will plead not guilty.
Your third court appearance, the Hearing of your case, will generally take place 2 to 3 months after the second court appearance.
You can never be 100% sure of the outcome of going to court. It is not always an easy decision to decide whether to plead guilty or not guilty. Having a lawyer on your side can be valuable in making that decision. Should you decide to plead not guilty, legal guidance can make the process a lot less stressful and hopefully lead to the outcome that you want. If you are found guilty of the offence, an experienced lawyer will be able to assist you in getting the best possible sentence.