If you wish to plead guilty to a charge against you and the case is to be heard in the Magistrates' Court, you may represent yourself. However, you should always get advice first, and well in advance of your hearing date.
Remember that just because acts were committed it does not automatically mean that all the elements of a criminal offence are made out. In a criminal case, the prosecution must prove each and every element of an offence beyond reasonable doubt before a finding of guilt can be made.
To give a simple but classic example, a person who is thirsty goes onto school premises wanting only to get a drink of water. The police arrive and charge the person with being unlawfully on the premises. The person may think that, because no permission was given to go into the schoolyard, "I did it, because I was there". This would be wrong, because the prosecution needs to prove that the person had a criminal intent or was in breach of the peace. Without proof of at least one of these things, the person's actions amount only to a civil trespass and not a criminal offence. If the thirsty person did not get advice, and pleaded guilty to the charge of being unlawfully on the premises, a fine or a prison term could result. A very expensive drink!
Conversely, you may be found guilty of an offence even though you were not aware that your behaviour constituted an offence. For example, although you may not have known that your driver's licence was suspended, you may be found guilty of driving while suspended if the court deems that you should have opened your mail, or kept track of your demerit points more carefully. Often "wilful blindness" to a fact will not be a defence.
If in doubt, advice can be obtained from a community legal centre or the VLA office near you (see: Chapter 2*4 Advice Directory).
If you are going to represent yourself on a criminal charge, there are important things you need to do beforehand. What you need to do depends on the information you receive from the police when you are being charged with a criminal offence.
If the police give you a Notice to Appear, this means that they will file a charge with the court within 14 days of giving you the notice. Within seven days of the charge being filed, the police must provide you with a preliminary brief. A preliminary brief is a document that includes information about what you have been charged with, a summary outlining what the police say happened, and a list of witnesses and other evidence which the police intend to rely on to prove the charges against you.
If you are served with a Notice to Appear by the police, then you do not need to write to them seeking further information about the charges before your court date, because they are required by law to provide you with the preliminary brief within the timeline outlined above. This process is governed by Chapters 2 and 3 of the CP Act.
The system outlined above is designed to make it easier for the police to give a clear picture of their case against you without having to prepare a full brief of evidence, while you should be able to access this information quickly and without too many complicated steps. The preliminary brief system was recently introduced in Victoria and is not used in every case yet. For this reason it is important to pay attention to what the police say when they charge you or speak to you about an offence.
If you do receive a Notice to Appear but do not have a preliminary brief for some reason, there will be a copy at court that will be provided to you on your first court date. You can get your copy from the prosecutors and if you wish to you can seek legal advice on it from the duty lawyers at court on the day.
If you do not receive a Notice to Appear from the police, then you will have received a summons for court (charge sheets) or have been arrested and bailed to appear at court. In this situation, you will need to take active steps to get detailed information about the case from the police. You will need to write to the police officer who has charged you (the informant) and request a full police brief. If you do not receive a Notice to Appear in your case, then you are entitled to receive the full brief under section 39 of the CP Act. Keep a copy of the letter you send and all correspondence sent to the prosecution.
The police brief is basically the evidence on which the police prosecutor relies to prove the charge against you. The full police brief will contain more detailed information and evidence than a preliminary brief, which is a short version of the police brief. Regarding a full police brief, the legislation requires that all relevant witness statements be provided to the defence or to you, the defendant. Those statements give a picture of what is likely to be said in court by those witnesses when they are called to give evidence by the prosecution.
If you have not received the police brief by the time the hearing date arrives, you should ask the court to adjourn your case to a later date so that the police informant can comply with the request. A solicitor's letterhead can often make a difference in getting a prompt response from the police. A community legal service may also be able to help with this. It is very often the case that there will be a copy of the police brief at court, even if the police have not sent your copy to you yet. If the case is relatively simple, the Magistrate may stand the matter down for you to read the brief at court and perhaps seek legal advice from the duty lawyers, to see whether or not you can decide what you want to do on the day.
If it has been impossible for you to get legal advice before the hearing date, the duty lawyer at court may be able to assist (see: "Duty lawyer services", in Chapter 2*3 Legal Aid). However, the duty lawyer will have many other people needing help on the day and may have limited time to spend with you. If your matter is too complex, or needs further preparation, or if you are contesting your matter, you will most likely need to request that your matter be adjourned.
Note: Not all Magistrates' Courts have a duty lawyer present all the time. If you are relying on the help of a duty lawyer, ring the court before the hearing date to make sure a duty lawyer will be available. The duty lawyer service will not be able to assist you on the day that your case is listed for contested hearing. As detailed above, preparation is essential and it is important to seek legal advice prior to your court date.
If you decide to enter a plea of "guilty" you can expect the following procedures on the day your case is being heard.
- After your name is called, the court clerk will direct you to the front of the court.
- The prosecutor will apply for "summary jurisdiction" if the charge is a serious one (i.e. an indictable offence). This means that the Magistrate must tell you that, if you want to, you can choose instead to have your case decided by a Judge and jury in the County Court. Three key things to consider in making the decision are: the cost, the delay and the benefit (for more information on this issue, see: Chapter 3*4 Types of Crime: Which Court?). Otherwise, you may elect to have the Magistrate hear the charge there and then. (The list of indictable charges that may be heard summarily, that is, by a Magistrate, is listed in Schedule 2 of the CP Act). See also: "Magistrates' Court" in Chapter 1*2 Courts.) If you elect to go before a Judge and jury, the Magistrate will arrange for your case to be adjourned for another hearing. If you elect to have the charge dealt with by the Magistrate, the hearing will proceed.
- The Magistrate will ask what your plea is to the charge(s): "Guilty" or "Not guilty". You must answer this question. If you are not sure, do not proceed. Ask the Magistrate to stand your case down so that you can speak to the duty solicitor or seek other advice.
- The prosecutor will read to the court a summary of the facts relating to the charge/s against you. The Magistrate will ask you whether there is anything you wish to say about these facts. If you disagree with an important part of the summary, the Magistrate might stand the matter down to enable you to receive legal advice about whether or not to plead guilty.
- When you are pleading guilty the Magistrate will ask if you have any prior findings of "guilty" on your criminal history (including any good behaviour bonds). If you are in court for a traffic matter, the Magistrate will ask for your driving history. These will be read out or shown to you by the prosecutor. You are then asked to agree or disagree that these (if any) are a correct record. If you disagree, the hearing will stop while the prosecutor investigates the record further. If you agree, the record will be accepted as read and accurate and the hearing will continue. It is important to make sure that the prior record is accurate, because it will influence the Magistrate's final sentencing.
- The Magistrate will ask you to explain yourself so that a judgment can be made as to what (if any) punishment will be imposed on you. If you hear words like "What do you want to say?" or "What have you got to say for yourself?" be prepared. Stay calm, don't get angry, and say what you want to say as clearly and briefly as possible. The matters the Magistrate will be most concerned to hear about are:
- any mitigating explanation for your offending behaviour. You should not try to justify your behaviour, but only to explain anything that may have influenced the way you acted, for example, some event or crisis in your life that affected your judgment at the time;
- your age and family circumstances;
- your current occupation;
- your current financial circumstances: income, expenses (accommodation and living generally), debts, etc.;
- why you need your driver's licence (if you are in danger of losing it);
- any medical information that is relevant;
- any references (written, or from people you have brought to court to speak) about your character in general. These may be from employers, teachers, religious, sporting, long-time friends, and/or neighbours, a doctor, etc.;
- what you have done since the offence to ensure that you stay out of trouble; and
- any personal support that you have in place, for example drug counselling or financial counselling. It will be important to bring written confirmation of this assistance, which is particularly important when you are getting assistance with issues that underlie your offending.
- The Magistrate will then sentence you. For details of the sentencing orders that may be imposed, see: Chapter 3*5 Sentencing in the Magistrates' Court.
Remember, it may be very risky to decide to represent yourself at a plea of guilty where you are looking at a serious penalty, including a possible sentence of imprisonment. In these circumstances always check whether you qualify for a grant legal aid or can arrange for private representation.
If you wish to plead "not guilty" to a charge against you the court procedure will be much more complicated (see: "Going to court" in Chapter 3*4 Types of Crime: Which Court?). It is very important that you seek legal advice well before the first hearing date. Advice can be obtained from a community legal centre or the VLA office nearest you (see: Chapter 2*4 Advice Directory). It is much more risky to represent yourself in a "not guilty" plea, and you should consider all other options carefully before deciding to do so.
If you contest a matter and are found guilty anyway, the penalty imposed on you will usually be higher than if you had pleaded "guilty" in the first place.
In criminal cases, there is always a chance to negotiate. If you face a number of charges, some may be overlapping. In that case, it may be possible to negotiate with the prosecutor to have any duplicate charges withdrawn. You may also be able to provide information to the prosecution that makes it clear that you have a complete defence. With these kinds of discussions, in some cases the prosecutor will tell you that you need to have a "summary case conference". The Magistrate or Registrar at court can direct you to have a summary case conference.
A summary case conference means an out-of-court discussion with a senior prosecutor who can negotiate with a defendant or defence lawyer about charges or about what is said in the summary. If you want to plead "not guilty", the court will usually direct you to have a summary case conference before you can book your case off for either a contest mention or a contested hearing. If you are self-represented, the Magistrate may give you permission to proceed with the case without holding a summary case conference first.
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CRIMINAL CASES :: Last updated: Thu Jul 1st 2010