If you are charged with an offence you will be required to attend a Court hearing, in most cases there will be more than one appearance in Court.
A person who has been charged with a criminal offence will either be given a notice of bail requiring them to attend Court at a later date or will be taken to Court to apply for bail in front of a Judge or Community Magistrate.
If the charges are serious, if the prosecutor thinks that the person charged might not come back to Court, or if there is a risk that the person charged might try to interfere with the evidence the prosecutor may ask to have that person kept in custody (in jail) until their case has been completed. If the case is going to a jury trial that could mean waiting a year or longer in jail.
The prosecutor can ask the Judge to keep someone in prison pending trial or sentence but ultimately that is a decision that can only be made by the Judge. A defence lawyer can argue for his or her client to be released on bail and can suggest bail conditions to make sure their client isn’t at risk of re-offending or failing to return to Court.
A large number of my clients facing serious charges have been granted Electronic Bail (EM Bail) where they wear an electronic monitoring device on their ankle to confirm that they are at home when required. Waiting for trial in the comfort of your own home is a great alternative to sitting in a prison cell.
As with all decisions made in Court there is a right of appeal. If someone is refused bail in the District Court they have a right to appeal to the High Court.
I have argued bail appeals in the High Court and Court of Appeal and have successfully had hundreds of clients released on bail, many who have gone on to be acquitted (found not guilty) without ever serving any time in prison.
At the first appearance bail conditions can be confirmed. In some cases the prosecutor will oppose bail and ask that the person charged is held in custody until their trial.
The Court will ask whether the person charged wishes to enter a plea, either guilty or not guilty. If the person charged is not ready to enter a plea the case can be adjourned (put off) to another day, usually in two to three weeks time. During that time the person charged, or their lawyer can contact police to request a copy of the disclosure file. This file will include copies of any witness statements, a summary of the alleged offending and a copy of the previous conviction history for the person charged (if any).
If a guilty plea is entered at this stage in proceedings the Judge may impose sentence straight away or may adjourn the case so that reports can be prepared. Whether the case is dealt with straight away will depend on factors including how serious the charge is, whether the person charged has previous convictions and the outcome or sentence that is being sought. If the person charged wants to apply for a discharge without conviction (to receive no criminal record) then a written application needs to be prepared and filed.
If a not guilty plea is entered then the case will be adjourned for a case review hearing. When accepting the plea the Court will want to know whether the person charged wants to have their case heard by a judge or a jury. In cases where the maximum penalty is more than 2 years imprisonment a person charged can choose to have a jury decide whether they are guilty instead of a judge.
Case Review Hearing
After a not guilty plea has been entered the case will be adjourned for a case review hearing. Before the case review hearing the lawyer for the person charged is lawfully required to meet with with the prosecutor to discuss the case, whether there is any way of resolving the case, for example by withdrawing charges that cannot be proven. At the hearing the Judge will inquire whether the case can be resolved or whether a trial will be required.
If the case can be resolved this will happen either by a guilty plea(s) being entered, a charge(s) being withdrawn or a charge(s) being reduced to less serious charges. The Judge can then either impose sentence or adjourn the case for further reports.
If a person charged does not plead guilty and the charges are not withdrawn then the matter will proceed to a trial. At trial the prosecutor is required to prove every offence charged beyond reasonable doubt, if the prosecutor cannot prove the charge beyond reasonable doubt then the Judge or Jury hearing the case will find the charge has not been proved and that the person charged is not guilty.
At a trial the prosecutor will bring each of their witnesses to Court. The witnesses will given evidence by telling the Court what they say happened. After they answer questions from the prosecutor the witness will then be asked questions by the defence lawyer.
Once all of the witnesses for the prosecution have given evidence the lawyer for the person charged can make an application to have the charge(s) dismissed if he or she thinks that the prosecutor has not proven the case.
If the Judge considers that there is a case to answer – that the evidence does support the offence that has been charged – then the person charged can choose whether he or she gives evidence. The person charged would first be required to answer questions from their defence lawyer then questions from the prosecutor.
The person charged is not required to give evidence, this is a choice that the person charged will be required to make at the end of the prosecution case. The person charged can also call their own witnesses to give evidence, again this is not compulsory.
Once all of the witnesses have given evidence the Judge (in a Judge alone trial) or the jury will consider the evidence and decide whether they feel the charge has been proven.
If the judge or jury considers that the charge has been proven they will return a verdict of guilty. If they are not satisfied, beyond reasonable doubt, they will return a verdict of not guilty.
If the verdict is not guilty this will be the end of the case. If the verdict is guilty the case will proceed to sentencing.
Once guilt has been established, either following a guilty plea, or after being found guilty by a Judge or jury the matter will proceed to sentence.
For minor offences sentence may proceed on the same day, immediately following a guilty plea or being found guilty.
In other matters the Court will be assisted by reports. A pre-sentence or PAC report is commonly ordered by the Court. This report involves a defendant meeting with a Probation Officer to discuss their offending. The Probation Officer will discuss factors that led to the offending, whether the defendant is remorseful and their risk of re-offending.
Other reports can be obtained by the defence lawyer including psychological reports and cultural reports to provide the Judge with further background information before sentence is imposed.
In many cases both the defence lawyer and the prosecutor will file written submissions, suggesting to the Court what an appropriate sentence would be and comparing the case with other similar offences.