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Important Factors

Important factors to address on any bail application include:

• Seriousness of the Offence: The more serious the offence (e.g., violent crimes, drug trafficking), the less likely the court is to grant bail, especially if it involves a risk to public safety or the community.
• Risk of Fleeing (Flight Risk): If the court believes that the accused might flee and fail to attend court hearings, bail might be denied.
• Likelihood of Committing Further Offences: The court will assess whether the person is likely to commit another offence while on bail.
• Ties to the Community: The defendant’s family, employment, and length of residence in the area can be factors that suggest they are unlikely to flee.
• Criminal History: If the defendant has a history of not complying with bail conditions or has been convicted of similar offences, it could negatively affect the chances of bail being granted.
• Risk to Witnesses or Victims: If the accused is likely to intimidate or harm witnesses or victims, bail may be denied.
• Strength of the Evidence: If the evidence against the defendant is strong and it looks likely that they will be convicted, the court may refuse bail to ensure they appear at trial.
• Bail Conditions: The court may be more willing to grant bail if there are strict conditions in place to ensure compliance, such as regular check-ins with the police, curfews, or electronic monitoring.

The Process

1. Consultation with Legal Representative:

• Before pleading guilty, it’s crucial to consult with a lawyer. They will help you understand the charge, the potential consequences, and whether a guilty plea is in your best interest.
• Your lawyer may also try to negotiate a plea deal which may involve having certain offences withdrawn, pleading to a lesser charge or charges, placing certain offences on a ‘Form 1’ and / or changing the police facts. Such negotiations often yield more favorable outcomes for those accused of criminal offenses and can, in some situations, result in avoiding a conviction (no criminal record).

2. Pleading guilty

• Your lawyer will appear on your behalf at court and enter a plea of guilty for the offence/s for which you agree. A guilty plea means that you accept responsibility for the offence and do not wish to contest the matter at hearing.
• It is important that your lawyer reviews the material the Court receives upon confirming the plea of guilty. For example, if there has been an agreement for a different fact sheet to be tendered, your lawyer needs to confirm the Court receives the correct copy.

3. Sentencing

• After the guilty plea is entered, the court will proceed to sentencing. In some cases, sentencing can occur immediately after the plea, while in others, the court may adjourn the matter for a later date to allow for the preparation of sentencing submissions (e.g., reports, character references, or information about your personal circumstances).
• The magistrate will consider various factors, such as the nature of the offence, your criminal history (if any), objective seriousness of the offending and any aggravating or mitigating factors.

The Process

1. Consultation with Legal Representative

• Before making any decision, it’s crucial to consult with a lawyer. A lawyer can assess the charges, provide advice on your options, and explain the evidence upon which the prosecution will attempt to rely upon in order to prove their case.
• Your lawyer will help determine any possible defences, the admissibility of evidence and what witnesses are required for ‘cross examination’.

2. Initial Court Appearance

• Entering the ‘not guilty’ plea: If you are pleading not guilty, your lawyer will state this on your behalf. Part of this process requires your lawyer to provide the court with an estimate as to how long your case will likely take, what witnesses are required, whether electronic evidence such as CCTV will be played, and whether any interpreters are required for the hearing.
• After this process, the court will proceed with setting a future date for the hearing.

3. Disclosure of evidence (receiving the Police Brief)

• The prosecution is required to disclose all evidence they intend to rely on in court, including witness / police statements, evidentiary documents, expert reports, electronic material (CCTV) and photographs.
• Your lawyer will receive this material directly from the police and review it.
• In some cases, there will be additional information or details that are required but which are not contained in the brief of evidence. Your lawyer can seek this information by making requisitions or seeking particulars from the prosecution. Examples of matters that might be requisitioned, if relevant, are:
  1. The criminal records of the police witnesses,
  2. Medical and / or other records,
  3. Body worn video of certain police officers either before, during or after the alleged offending,
  4. Applications for search warrants and / or listening device warrants,
  5. Custody management records,
  6. Police notebook records, and
  7. Other documents that are referred to in the brief but are not contained in the brief

4. Preparing your case

You may deny the allegation altogether, dispute certain facts alleged, raise a legal defence (like self-defence for example) or just seek to put the prosecution to proof (a legal strategy used by the defence where the defendant does not admit to the charges and forces the prosecution to present sufficient evidence to support the allegations). Depending on your instructions and the type of case, some steps in preparing for a defended hearing may include:

1. Gathering evidence: Begin by gathering all evidence that supports your innocence or challenges the prosecution’s case
2. Identify potential defences: There are various defence strategies that may be available depending on the circumstances of the case. An example of some legal defences include:
   • Self-Defence: Arguing that you acted in self-defence to protect yourself from harm.
   • Coercion/Duress: Arguing that you were forced or threatened into committing the crime.
   • Consent: In some cases, you may argue that the alleged victim consented to your actions (e.g., in assault cases or some property crimes).
   • No Criminal Act: In cases where you argue that no crime occurred (e.g., there was no theft, assault, or other criminal act).
   • Unlawful Search and Seizure: Arguing that evidence was obtained illegally (e.g., without a warrant or probable cause), making it inadmissible in court.
3. Prepare for cross examination of police witnesses: Your lawyer will prepare strategies for cross-examining the prosecution’s witnesses to undermine their credibility and challenge their version of events.
4. Prepare legal arguments: Your lawyer will plan the overall strategy for presenting your case in court, including deciding which witnesses to call, how to structure the defence, and which legal arguments apply to your matter.

Preparing a defence to a criminal charge is a comprehensive process that involves many steps and careful consideration. It is essential to work closely with your lawyer to ensure that you fully understand your options and develop the best possible strategy to defend yourself.”

The Process

1. Filing the Appeal

• To begin the process, you (or your lawyer) files an appeal to the District Court, usually within a specified time frame (often 28 days after the sentence is handed down).

2. Appearing in the District Court (Mention)

• Your lawyer will appear on your behalf at the District Court and confirm the basis upon which the appeal is filed (grounds of the appeal).
• The Court will confirm everyone’s availability and how long each party expects the appeal to take. After this, the Court will list the matter on a date in the near future for argument/hearing.

3. Appeal Hearing

• During this hearing, your lawyer will argue why the sentence should be reduced. The prosecution may respond, defending the original sentence.

It’s important to have an experienced lawyer for a severity appeal, as they will need to provide compelling reasons for a reduction in the sentence.

The Process

1. Lodging the Appeal

• To begin the process, the defendant or their legal representative files an appeal to the District Court, usually within a specified time frame (often 28 days after the sentence is handed down).

2. Appearing in the District Court (Mention)

• Your lawyer will appear on your behalf at the District Court and confirm the basis upon which the appeal is filed (grounds of the appeal).
• The Court will confirm everyone’s availability and how long each party expects the appeal to take. After this, the Court will list the matter on a date in the near future for argument/hearing.

3. Appeal Hearing

• During this hearing, your lawyer will argue why the prosecution is unable to prove their case beyond reasonable doubt (the prosecution continues to carry the onus of proof).
• A conviction appeal is essentially a re-hearing on the transcript of the Local Court hearing, unless the District Court grants leave for fresh evidence to be called or directs witnesses to attend for cross-examination.

It is important to have an experienced lawyer deal with your conviction appeal as the appeal process can be quite complex and often involves the submission of written arguments (called “submissions”) encompassing persuasive legal arguments relevant to your case.

The Process

1. Filing the application (Section 14 application)

• To begin the process, you (or your lawyer) informs the court that you seek to have your matter dealt with pursuant to section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
• The Court will, generally, adjourn your case to a later date and make certain orders requiring service of material relied upon.

2. Appearing on the application

• Your lawyer will appear on your behalf and argue why your case should be diverted under the relevant mental health provisions.
• The application must be supported by medical evidence. This may include medical reports, assessments, or testimony from healthcare providers.
• A treatment plan specifying the proposed treatment sought under the application is desirable.

One of the many advantages of a section 14 application is that upon completion of the treatment in accordance with the treatment plan the case is dismissed without the court recording a conviction (no criminal record).

It’s important to have an experienced lawyer to deal with these applications as they will need to provide compelling reasons for diverting a matter away from the criminal justice system.