You should always get legal advice before representing yourself in a criminal case. If you are pleading guilty it is important to know what penalties you may face. Remember, just because an act was committed does not automatically mean that you will be found guilty of an offense.
Get advice first
If you wish to plead guilty to a criminal charge and the case is to be heard in the Magistrates’ Court, you may represent yourself. However, you should always try to get legal advice first, and well before your hearing date. Advice can be obtained from a community legal centre, from VLA, or from a private lawyer (see Legal services that can help).
If it has been impossible for you to get legal advice before your court hearing, the duty lawyers at court may be able to assist (see “Duty lawyers” in How legal aid can help). However, the duty lawyer may have many other people to help and may have limited time to spend with you. You may also have to wait a long time to see a duty lawyer.
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. For a contested hearing, the duty lawyer service cannot assist you on the day. Preparation is essential and it is important to seek legal advice prior to your court date.
Remember that just because acts were committed, it does not automatically mean that all the elements of a criminal offence can be proven. In a criminal case, the prosecution must prove each element of an offence beyond reasonable doubt before you can be found guilty. This is one reason why it is important to seek legal advice about criminal charges.
For example, an intervention order is made against person A. One condition of the order is that person A must not go within five metres of person B. It is a criminal offence to breach this condition, and person A could go to jail for doing this. Person A goes to a petrol station to get fuel. They look up after getting the fuel and see that person B is at the fuel pump next to them, one metre away. Person B calls the police and says that Person A has come within less than five metres of them. Person A might think, “I was there, so that means I am guilty”. But this is not necessarily true. For person A to be found guilty, the prosecution needs to prove a number of elements, some about the physical facts of the case, and some about what the people involved were thinking. They would need to prove that not only did person A come within five metres of person B, but that they intended to do this and knew that person B was, or would likely to be, standing there.
Conversely, you may be found guilty of an offence even though you were not aware that your behaviour constituted an offence. For example, two people are arguing in the street. One person furiously shakes their fist at the other person and says, “You’re finished”. A police officer intervenes and charges this person with unlawful assault. The person thinks, “How could I have assaulted them? I didn’t touch them.” This person possibly did assault the other person, as assault is defined more broadly by law than just physically striking or hitting another person, and includes deliberately making them fear that you will use force against them.
If you have been charged with a criminal offence and you are going to represent yourself in court, there are important things you need to do before your court hearing. You need to get a copy of the brief of evidence, which tells you what the prosecution say happened, and what evidence they will use to prove their case against you. This will help you think about whether to plead guilty or not guilty.
The information you are entitled to is different depending on whether the case is summary or indictable (see Which court for which crime?).
In indictable (i.e. more serious) cases, there is a “filing hearing” when the charges against you are filed with the court. The magistrate at that hearing sets a timeline for when the prosecution must give you or your lawyer the brief of evidence. The time given is usually six weeks, but it can vary depending on how complicated the case is and what sort of evidence the prosecution has to prepare.
Indictable crimes are more serious offences with more serious penalties, especially when they are transferred from the Magistrates’ Court to a higher court, as sometimes happens. The procedures for getting the brief of evidence and responding to the prosecution case are complex, and it is very important to get legal advice and seek representation if you are facing a “filing hearing”.
It is not common to be given a Notice to Appear, and you are much more likely to receive a summons to appear at court (see “Summons or arrest”).
A Notice to Appear tells you that the police are intending to charge you, but have not done so yet, and gives you a court date. The police need to file a charge with the court within 14 days of giving you the notice. Although, if they fail to do this, they can still file a charge at a later time.
Within 21 days of the charge being filed, the police must give you a preliminary brief. A preliminary brief is a document that includes information about what you have been charged with, and a list of witnesses and other evidence that the police intend to rely on to prove the charges against you. It must also contain a signed statement by the police officer who charged you, outlining the facts of the case and what evidence and witnesses the police have to prove their case. The police officer must declare that this information is true and correct when signing the statement because you will depend on this information to get an idea of the case 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. This process is governed by Chapter 2 of the CP Act.
This system 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, and for you to access this information quickly.
If the police have given you a preliminary brief within 21 days, you cannot ask for a full police brief until after you have had a summary case conference (see “Preliminary brief and summary case conference”).
It is more common for police to give you a charge and summons, which is a sheet showing the charge that has been filed and telling you to appear at court on a particular day. If you don’t receive a summons, you might be given a charge sheet after being arrested and then bailed to attend court. You will often receive a preliminary brief in these cases too, but you are entitled (under s 39 CP Act) to write to the police requesting a copy of the full brief of evidence as soon as you receive a summons or charge sheet. Keep copies of all your correspondence with the police if you have written to them seeking information about your case. If there is a delay in the case later on, it is helpful to show that you have been proactive in getting information about your case from an early stage.
The preliminary brief is a short version of the full brief. The full brief provides sworn witness statements by people who saw or heard something relevant to the case. The full brief also includes “exhibits”, such as relevant photographs and documents. The statements and other evidence give a picture of what the police believe will be said and presented in court. The full police brief sets out the evidence on which the police prosecutor will rely to prove the charge against you in court. The full police brief is much more detailed than a preliminary brief. If your case is simple, you might be able to get enough information from the preliminary brief to seek legal advice and start thinking about what you are going to do.
A summary case conference is an out-of-court discussion with a senior police prosecutor who can negotiate with you or your lawyer about the charges or about what is said in the summary of facts about the case. They can change or withdraw charges if you both agree. It is supposed to help both sides narrow down the issues that they disagree on, and to help you decide early on whether you will plead guilty or not guilty to some or all of the charges. It can be difficult talking about your charges with a police prosecutor who has legal training if you do not. If you are confused or have trouble getting your point across, you can ask to stop the conference to seek legal advice.
If you do receive a Notice to Appear, but have not been given a preliminary brief before your first court date, a copy must be given to you at the first court hearing. You can get your copy from the prosecutors on the day. The duty lawyers at court may be able to read the brief and advise you. To make sure there is time to deal with all of this on your court day, it’s a good idea to arrive early. The police prosecutors at most courts open their offices at 9.30 am.
If you decide to plead guilty, expect the following to occur during your hearing in a Magistrates’ Court:
1 After your name is called, the court clerk will direct you to come to the front of the court.
2 The prosecutor will apply for “summary jurisdiction” if the charge is serious (i.e. an indictable offence). This means that the magistrate must tell you that, if you want to, you can choose to have your case decided by a judge and jury in the County Court. Three key things to consider in making this decision are: the cost, the delay, and the benefit (for more information on this issue, see Which court for which crime?). 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 in schedule 2 of the CP Act. See also “Magistrates’ Court” in An introduction to the courts.) If you elect to go before a judge and jury in the County Court, the magistrate will “adjourn” (i.e. put off until a later date) the hearing. If you elect to have the charge dealt with by the magistrate, the hearing will proceed. The magistrate is likely to ask whether you have received any legal advice and may urge you to get legal advice before making a decision.
3 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 down” (i.e. pause) your case so that you can speak to the duty lawyer or seek legal advice from elsewhere.
4 If you plead guilty, the prosecutor will read to the court a summary of the facts relating to the charge(s) against you. You will be asked if the summary is accurate. A summary is always included in the preliminary brief and the full brief. It describes the circumstances and the facts about what happened that make up the charge. For the case to proceed as a guilty plea, you must agree with the facts read out to the court. Sometimes, if you don’t agree, the summary of facts can be negotiated with the police and changed. This is something that you should decide on and discuss with the police prosecutor before the hearing in a summary case conference. This is also something that you should seek legal advice on either before court, or from the duty lawyer at court.
5 When pleading guilty, the magistrate will ask if you have any prior findings of “guilty” (called a “criminal history”). If you are in court for a traffic offence, the magistrate will ask for your driving history. These findings/history should be shown to you by the prosecutor so you can make sure they are correct. You are then asked to agree or disagree that they are correct. If you disagree, the hearing will stop while the prosecutor investigates the record further. If you agree, the record will be accepted and shown to the magistrate, 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. If you need time to look at it carefully, ask for time. The CP Act provides that your prior criminal history must be included with the brief, so you should have already had a chance to check it before going into court. If you have not read either the preliminary or full brief, you are not ready to go ahead with your case.
6 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 phrases like, “What do you want to say?” or “What have you got to say for yourself?” be prepared. Stay calm 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:
a 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 (e.g. some event or crisis in your life that affected your judgment at the time);
b your age and family circumstances;
c your current occupation;
d your current financial circumstances: income, expenses (i.e. accommodation and living expenses), debts, etc.;
e why you need your driver’s licence (if you are in danger of losing it);
f any medical information that is relevant (e.g. an injury might mean you are unable to carry out unpaid community work as part of a sentence) (for more information on what is involved in different types of sentences, see Sentencing in the Magistrates’ Court);
g any references (written, or from people you have brought to court to speak) about your character in general (e.g. these may be from employers, teachers, religious ministers, long-time friends, neighbours, a doctor);
h what you have done since the offence to ensure that you stay out of trouble;
i any personal support that you have in place (e.g. drug or financial counselling). Bring written confirmation of this assistance; this is particularly important when you are getting assistance with issues that may have played a part in the offending.
Remember, it is risky to self-represent when you are pleading guilty to an offence that carries a serious penalty. When you are pleading guilty to an offence that carries a possible jail sentence, the magistrate will ask whether you have had adequate legal advice, and advise you of your right to do so, before sentencing you. If the magistrate is not convinced that you have had adequate legal advice, they might pause (stand down) or adjourn the case to give you another chance to do this.
If you plead not guilty to a criminal charge, the court procedure is more complicated (see “Going to court” in Which court for which crime?). It is very important that you seek legal advice well before the first court hearing. Advice can be obtained from a community legal centre, from VLA, or from a private lawyer (see Legal services that can help).
It is more risky to self-represent when entering a “not guilty” plea, although you may have little choice if you cannot afford a lawyer and are not able to get legal aid funding. If you wish to plead not guilty but are told that legal aid cannot help you, ask about the possibility of getting further help from elsewhere (see Legal services that can help).
If you contest a matter and are found guilty, the penalty imposed on you could be more severe than if you had pleaded “guilty” in the first place. This is because the law says that if you plead guilty from the start, you must get a less severe penalty than you would if you contested the case and were found guilty.
In criminal cases, there is always a chance to negotiate. If you face a number of charges, some may overlap; it may be possible to negotiate with the prosecutor in a summary case conference 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.
If you plead not guilty, the court will direct you to have a summary case conference before your court hearing, or to go to a “contest mention”, which is a preliminary hearing where parties try to reach agreement on some matters before the case is heard. Such matters include which issues are disputed, which prosecution witnesses need to attend court to be cross-examined, and any other things that need to be done to prepare the evidence for the hearing. You will be asked to clearly explain which parts of the evidence you disagree with, so that the hearing can be planned to enable you to challenge the evidence you disagree with, or to (possibly) introduce your own evidence.