Acknowledgments 1. Introduction 2. Basic Legal Concepts 3. Campaign Planning and Protest Action 4. Speaking Out In Public 5. Interfering with Business Activities 6. Criminal Offences 7. Inclosed Property 8. On the Street 9. Special Areas 10. "Lock-down" Areas 11. In the Car 12. Forestry Areas 13. National Parks & Protected Areas 14. Commonwealth Land 15. Arrest & Detention 16. Bail 17. Preparing for Court 18. Before the Court Appendix A Appendix B Appendix C Appendix D Index

18 Before the Court

18.1 How Do I Know When to Go to Court?
18.2 What Are the Consequences of Getting a Court Attendance Notice?
18.3 What Will Happen on the First Day I Go to Court?
18.4 What Happens if I Wish to Plead Not Guilty and Go to a Full Hearing?
18.5 What Happens on the Day of the Hearing?
18.6 What is the Court Likely to Do?
18.7 What are the Consequences of a Criminal Record?

This Chapter deals with the mechanics of going to Court and what you can expect to happen.

18.1 How Do I Know When to Go to Court?

Court proceedings are now usually commenced by way of a Court Attendance Notice (or CAN),538 which can be given (or “served”) to you personally or by handing it to other adults at your home or workplace, by post or by email.539 Amongst other things, the CAN will set out the exact time, date and place where you are expected to appear.540

18.2 What Are the Consequences of Getting a Court Attendance Notice?

You must appear in Court on the date set out in the CAN. If you fail to appear without reasonable excuse, your case may be decided in your absence. You may also be charged with failure to appear and/or a warrant for your arrest may be issued.541 It will also make it more difficult to get bail if you are charged with an offence in the future.542

18.3 What Will Happen on the First Day I Go to Court?

This will depend on whether you are pleading guilty or not guilty, and whether you have had time to decide what to do.

The magistrate will ask you what you intend to do with the charges and, if you know, you should inform him or her that you will be pleading guilty or not guilty. If you do not know and wish for the charges to be adjourned, you should make your request at this time, giving your reasons.543

18.3.1 Pleading guilty

If you are going to plead guilty, you can have the matter dealt with on the first appearance in Court. The charges will be read and you will be asked how you plead. The police prosecutor may give a verbal summary of the facts or hand up the facts sheet to the magistrate. If you have a criminal record, this will also be tendered and will be taken into account in sentence.

You will be given an opportunity to have your say at this point. If you wish to avoid a criminal record, you should address the magistrate on this point and specifically ask for a “section 10 order”.544 You may wish to explain the nature of the protest action and that it was a matter of conscience or personal conviction by which you were involved. Other relevant factors will be whether you have a prior criminal record and the minor nature of the offence. It is wise to gather a couple of references from persons of stature in the community (university lecturers, politicians, solicitors or anyone who knows you well enough to vouch for your good character) and hand them to the magistrate at this point. You should also be aware that the magistrate is required to take into account a plea of guilty when sentencing you, which will usually result in a lighter sentence.545

18.3.2 Entering a plea of not guilty

If you are pleading not guilty, the matter will be adjourned for a reply date in about a month’s time. You will receive the brief of evidence from the police prosecutor during this month. At the reply date, you can then change your plea to guilty or have the matter set down for hearing.

18.4 What Happens if I Wish to Plead Not Guilty and Go to a Full Hearing?

Before the first reply date, you should be provided with copies of all the evidence that the police prosecution have.547 They will prepare witness statements, including statements from the arresting and corroborating officers.548 The police may also have photographic, video or tape recordings, such as recordings of conversations you had with the police.549 If you do not have this evidence at the first reply date, the magistrate may grant a further adjournment to allow more time for preparation of the evidence.550

An unreasonable delay in preparation of the police brief of evidence can result in charges being dismissed, but as long as there is reasonable explanation of the delay a magistrate is likely to allow the police time to prepare.

It is up to the prosecution to prove the case against you beyond reasonable doubt (see 2.4 above). Even if they do this, you may still be able to raise a defence (see 2.5 above). For this part of the case, the onus is on you to prove the defence on the balance of probabilities (see 2.4 above). This is a lower standard of proof than beyond reasonable doubt. An accused person does not have to give evidence in a criminal hearing. You can decide to give evidence yourself and/or call other witnesses to give evidence on your behalf. It may be necessary to give evidence if you are relying on a defence. You do not have to provide your evidence to the prosecution before the hearing.

18.5 What Happens on the Day of the Hearing?

The hearing is basically divided into three stages – the prosecution case, your case and submissions summarising the arguments from both sides. Within each of these stages there are set rules and procedures.

18.5.1 The prosecution case

a) Evidence in chief

At the hearing, the police prosecutor will call their evidence first. In criminal matters, all evidence is given verbally. The police prosecutor will ask questions of the witness to reveal evidence (evidence in chief). These questions must not be “leading”, For example, “Did you see the accused cross the fence line onto Commonwealth property?” would be a leading question. You or your lawyer could make an objection to such a question. Rather, questions must be asked in as neutral a way as possible (“Did you see the accused?” or “Where was she?”).

b) Cross-examination

You will then have the opportunity to cross-examine the witness. You are able to ask leading questions in cross-examination. There are a few important points to note:

First, work out beforehand what you want to say to the magistrate at the end of your hearing (in your closing submission). The questions you ask in cross-examination should be based on the case you want to make.

Second, and related to the above, you must give a witness the opportunity to answer an accusation or submission that you later wish to make (for example, that the witness has given wrong or false evidence).551 This can be done by the (classic) technique of “I put it to you that…). This rule is of enormous practical significance. If you do not abide by it in cross-examination, for reasons of fairness, you may not be able to make submissions on the issue to the magistrate (or even call witnesses on the issue).

Third, you should familiarise yourself with witness statements made prior to the court appearance. If what is said in court is inconsistent with these statements, you can draw the Court’s attention to the issue by asking the witness about the inconsistency.552 Fourth, ask what you need to and no more. You must be careful that you do not give the witness the opportunity to say something detrimental to your case that they were not able to say in evidence in chief.

c) Re-examination

Following cross-examination, the prosecutor will then have the opportunity to ask further questions of the witness but only to clear up any matters that have come up in crossexamination. This is called re-examination.

18.5.2 Your case

After the prosecution has finished presenting their case, you have the choice of whether or not to present evidence. If you call witnesses, the same procedure and rules apply as outlined for the police evidence.

18.5.3 Closing submissions

After all the evidence is finished, you and the prosecutor have the chance to make submissions to the magistrate. You should say why you should not be convicted. This may be because the prosecution has not proved the offence beyond reasonable doubt or because you have a defence.

You should note that there are many other rules of evidence. A good summary of evidence for self-represented people can be found in the book by Gaby Carney and Tim Anderson, Defend Yourself: Facing a Charge in Court produced by Redfern Legal Centre. A further extremely useful, but more technical resource (as it is targeted at lawyers), is “Preparing a Defended Hearing in the Local Court”.553

18.6 What is the Court Likely to Do?

If you plead guilty or are found guilty after the hearing, you will be sentenced. There are several types of penalties, ranging in seriousness, as follows:

18.7 What are the Consequences of a Criminal Record?

The law generally draws a distinction between your criminal record (convictions only) and your criminal history (charges, court appearances and convictions).

Your criminal record will lapse after a 10 year crime-free period, at least for the types of offences that a protestor may typically be convicted of.567 This is known as the conviction becoming “spent”. Once a conviction is spent, the person concerned is usually not obliged to disclose it (for example, when applying for most jobs, insurance, credit or when completing an application for a statutory licence).568 Penalties apply for the unauthorised release of information on spent convictions.569

By contrast, your criminal history generally lasts forever, as it is used by police to gain a profile of your involvement within the criminal justice system for investigative purposes. For example, even when a conviction is spent, information about it is generally not destroyed.570

18.7.1 Employment

Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It will usually be assessed by the employer and considered according to the individual circumstances of the case.

An employer may legally ask an applicant whether they have any previous charges or convictions. If an employer asks you if you have a criminal record, it may be advisable to disclose it. If you don’t, this may justify your employer terminating your employment at some time in the future. However, you are entitled to withhold information about any spent convictions, except when applying for certain jobs.571

Some professions may refuse to register or licence persons with records of certain offences. Also, you may sometimes have an ongoing duty to notify your professional body and be subject to disciplinary proceedings. Examples include lawyers, doctors, nurses, teachers, security guards and accountants.572 In some cases, failure to disclose may be more serious than actual disclosure. For example, failure of a lawyer to disclose a conviction for a minor summary offence in a political demonstration is likely to be more seriously regarded than the offence itself, as the failure to disclose connotes dishonesty. You should check with the relevant professional body for their requirements.

18.7.2 Public offices

Having a criminal record may impact on your ability to hold a public office, such as a politician or councillor.573 If you think you may wish to go into politics in the future, you should check the requirements for the particular government (local, State or Federal) with a lawyer.

18.7.3 Travel and immigration

Some countries, including Australia, require you to disclose any past arrests or convictions on visa applications. Laws vary from country to country and are changing rapidly in the current international climate. You should call the relevant consulate or embassy to find out the approach taken to charges and convictions by the country you wish to visit. Websites may also contain such information.574

18.7.4 Fingerprints

The court will usually order that prints or photographs be taken of an offender upon conviction if they were not taken upon arrest.575 If you refuse, you may be liable to a maximum of 12 months imprisonment under Commonwealth,576 or to arrest under NSW law.577*

This site was last updated Friday 30 July, 2010 © 2010 Environmental Defender's Office (Ltd) NSW Home | Disclaimer | Privacy | Contact Us | Support the EDO