Information for Defendants
Who is a defendant?
A defendant is a person who has been charged with a criminal offence in the Magistrates Court.
A defendant may be brought before the Court as a result of being charged with a criminal offence by the police or being summoned by the court as result of the police, or other informant, laying an information before the Court.
What does it mean to be charged?
A person who has been arrested by the police is charged when a police officer formally alleges that they have committed the offence. The charging of a person commences proceedings against the person. When a person is charged they will be given a charge sheet stating the offence the police allege they have committed.
Once charged the defendant will, depending on the circumstances and the seriousness of the offence either be released on bail to appear before the Court on a specified date or held in custody to be taken before a Court at the earliest opportunity. The defendant can apply for bail when before the Court.
What does it mean to be summoned?
Where the police are of the opinion that a person has committed an offence but do not believe it necessary to arrest the person the police may commence proceeding by laying an information before the court. An information is a document that names the defendant and sets out the offence the defendant is alleged to have committed. An information may also be laid by a person other than a police officer, often this will be government officials whose role it is to enforce specific legislation, such as liquor laws or safety regulations.
When an information is laid before the Court, the Court will generally issue a summons directing the defendant to appear before the Court at a specified date and time to answer the allegation made against the defendant in the information. If the Court is satisfied that the defendant may not comply with the summons the court may issue a warrant for the defendant’s arrest. A warrant directs police officers to arrest a the person named in the warrant and bring them before the Court.
Unless a warrant is issued the Police will serve a copy of the information and summons on the defendant.
What happens when the matter comes before the Court?
When the matter first comes before the Court the defendant will be asked what they wish to do in relation to the charge. If the defendant is not in custody, the defendant may seek an adjournment for up to three weeks to obtain legal advice, indicate a plea of guilty and have the matter dealt with on that day (provided it is a matter that can be dealt with in the Magistrates Court and the Court does not require any additional information before sentencing the defendant) or indicate a plea of not guilty and have the matter put over for a case management hearing.
If a person is in custody they may have the matter adjourned and seek bail, plead guilty and have the matter dealt with (provided it is a matter that can be dealt with in the Magistrates Court), indicate a plea of not guilty and seek bail. If they indicate a plea of guilty on a matter that can only be dealt with in the Supreme Court then they may seek bail while the matter is transferred to the Supreme Court.
What is a Statement of Facts?
When a person is charged with an offence (including by way of summons) the police prepare a document known as a Statement of Facts which sets out the facts which the police say if proved by evidence, would establish that the person committed the offence with which he or she has been charged. The defendant is entitled to a copy of the statement of facts so that they know the allegations against them.
If a defendant is not provided with a copy of the statement of fact by the police he or she may request a copy from the Director of Public Prosecutions (commonly referred to as the DPP).
The DPP is an independent body responsible for conducting and supervising criminal and related proceedings in the courts. The DPP conducts all prosecutions on behalf of the police in ACT Courts.
What is a record of interview?
When police are investigating a matter they may conduct a formal interview with defendant. The interview will be recorded on audiotape, videotape, or in writing. The recording of the interview is referred to as the Record of Interview. Defendants should be given a copy of the record of interview. If the defendant does not have a copy of the record of interview they may request a copy from the office of the DPP.
Applying for bail
A person in police custody may apply for bail once he or she have been charged. If a person has been refused bail by the police the defendant may request the police to review the decision to refuse bail. If the police still refuse bail the defendant will still have the opportunity to apply for bail when they are brought before the Court. The police and the Court are required to take into account a number of factors when deciding whether to grant a person bail, including the seriousness of the offence, the likelihood of the person returning to court if granted bail and whether the person has other outstanding matters before the Court.
Bail is an undertaking by the defendant to re-appear in Court at a specified time. Bail is forfeited if the defendant fails to appear. Bail may be granted on conditions such as the defendant being required to reside at a particular place or to report to police at particular times. A defendant may also be required to provide a surety, that is a person who undertakes to pay an amount to the Territory if the defendant fails to answer his or her bail.
A defendant can plead guilty at any time. When a plea of guilty is entered the matter can be dealt with straight away by a Magistrate or be adjourned to another date to allow time for extra information to be provided. In some instances the case may be sent to the Supreme Court for a Judge to pass sentence. Witnesses are not usually called to give evidence on a plea of guilty and the Magistrate or Judge can make a decision based on an agreed Statement of Facts.
Pleading not guilty
When a plea of not guilty is entered the matter is usually set down for a Case Management Hearing. In this instance, the police send a brief of evidence to the DPP. The brief of evidence consists of all witness statements and physical evidence including photographs and recordings. The case is allocated to a Prosecutor who will conduct the prosecution. A copy of the brief is provided to the defendant or his or her lawyer.
At the Case Management Hearing, the defendant, or his or her lawyer, and the prosecutor will discuss the case to see if the defendant is still pleading not ‘not guilty’. If the not guilty plea is to be maintained the matter will be set down for hearing at a later date. If a defendant changes their plea to guilty, the Magistrate may sentence the defendant at the case management hearing or adjourn the matter to another day for sentencing or transfer the matter to the Supreme Court if necessary.
Appearing in Court
Most cases can be dealt with in the Magistrates Court. However, more serious offences must be sent to (or committed to) the Supreme Court. In the Supreme Court, if a plea of guilty is entered, the accused will appear before a Judge and a date will be given for sentence proceedings to take place. If a plea of not guilty is entered the accused will appear in court and the case will be sent through a pre- trial process. This process ensures the case is ready to proceed before a trial date is set and all of the evidence taken – usually in front of a Jury but sometimes by a Judge alone.
Where a defendant pleads guilty or is found guilty of an offence the court must decide what penalty to impose on the defendant. If the defendant has no prior offences and the Court is of the opinion that it is not necessary to impose a penalty it may decide not to impose a penalty. Generally the Court will impose some type of penalty or sentence. The Court can impose a wide range of penalties including a term of imprisonment, periodic detention, community service, a suspended period of imprisonment, a good behaviour order and a fine.
Where a defendant has been found guilty of an offence they may appeal that finding. If the finding of guilt is in the Magistrates Court the defendant may appeal to the Supreme Court. Where the defendant was found guilty in the Supreme Court he or she may appeal to the Supreme Court.
A defendant may also appeal against the sentence imposed by the Court.
An appeal must be lodged with the court where the appeal will be heard, within 28 days of the sentence being imposed on the defendant.
Where is help available?
The ACT Magistrates Court, Criminal Section can assist you in answering questions to do with defending a criminal matter. Please note, however, that legal advice cannot be provided by court staff. If you do require legal advice then the following organisations may be able to assist.
The Court has produced a number of brochures that may be useful to you such as What Happens Now and Time for a Plea. You may also wish to refer to the Bail Act 1992.