BEING CHARGED BY POLICE

There are three common ways people are charged with criminal offences by police.

Each method generally requires the defendant to first appear before the Magistrates Court to commence the legal process. The three common methods of charging people are:

• arrest;
• complaint and summons;
• notice to appear.

Arrest

Arrest entails a person being taken (forcibly if necessary) by police to a watch-house and formally charged at that point. The person is usually fingerprinted and photographed. Bail (release from custody) may be granted by the watch-house keeper. If bail is refused at that stage, a person must stay in custody until brought before a magistrate at the earliest possible opportunity (often the same day). An application for bail may be made to the magistrate if the police have not granted bail.

Complaint and Summons

A complaint and summons allows police to formally put a charge in writing, and after having sworn it on oath before a justice of the peace, serve the document on a defendant. The defendant then has to appear in the local Magistrates Court usually about 3 to 4 weeks later. By choosing to charge someone by way of summons rather than by arrest, the police avoid the need to arrest the suspect and take them to a police station. Of course this is also preferable for the person charged.

Notice to Appear

A notice to appear is another alternative by which police can start proceedings against a defendant. A notice to appear is a short document which contains a minimum of details about the charge. It provides a general description of the offence charged, rather than the formally worded charge found in a summons.

An advantage to police is that, unlike a summons, it does not have to be sworn on oath. It can be issued “on the spot”. This process is less time consuming than the issuing of a summons and it is more convenient to police. Consequently it is the most frequently employed method of bringing defendants before a court.

If you have been served with a notice to appear, you must turn up to the court at the specified time.

A notice to appear must allow a person at least fourteen (14) days to obtain legal advice before the first court appearance.

The police may also issue a “notice of identifying particulars” with a notice to appear or a summons. This requires that a person charged with an offence attend at a police station within 48 hours to provide identifying particulars (such as fingerprints, photographs etc) as required.

This has the advantage of allowing a person to attend to provide fingerprints at a time convenient to them, as opposed to it being done immediately following arrest.

When a person is charged by way of summons or notice to appear, they are legally obliged to appear in court at the specified time. Failure to appear will usually result in the court issuing a warrant for the arrest of the defendant. 

BAIL

People charged with criminal offences are commonly required to enter into an undertaking (promise) in order to be granted “bail”. Bail can be granted by police at the watch-house if a person is arrested, or by the magistrate when a person first appears in court on a summons or notice to appear (or if bail has been refused by the police following arrest).

Defendants have a general entitlement to be granted bail, although there are some “show cause” situations under the Bail Act, where the responsibility switches to the accused to demonstrate fitness for bail.

Bail will generally be granted unless it is considered that there is an unacceptable risk that the accused will commit further offences whilst on bail, interfere with witnesses, or fail to appear at the next court date. 

THE COURT PROCESS

There are four courts in the Queensland court system:

• the Magistrates Court;
• the District Court;
• the Supreme Court;
• the Court of Appeal.

All criminal matters, as a general rule, commence in the Magistrates Court. Whether they remain in the Magistrates Court, or are ultimately transferred to and disposed of in the District or Supreme Court, will depend on the nature of the offence. 

Which Court?

Most minor offences are dealt with in the Magistrates Court. More serious offences (“indictable offences”), may also sometimes be dealt with in the Magistrates Court. Otherwise, indictable offences must be heard in the District or Supreme Court.

Matters that are dealt with in the Magistrates Court, whether they be indictable or not, are said to be determined “summarily”. This means that they are heard by a magistrate (without a jury) who decides all matters of law and fact and delivers judgment.

The Supreme Court essentially deals with charges of murder, attempted murder, manslaughter, and serious drug offences.

The District Court deals with all other indictable offences that are not dealt with in the Magistrates Court or in the Supreme Court. Examples of these include robbery, serious assaults, fraud matters and sexual offences.

The court which finally hears a matter is very important. Not only will it affect the length and nature of the court proceedings, it will also impact upon the defendant’s appeal rights, and the cost of proceedings. 

Elections

In cases where an offence can be dealt with in more than one court, there is an "election" or choice to be exercised to determine where the offence will be heard. It is very important to find out in what court the offences can be heard, since this will affect the whole case.

In many drug matters, for example, it is the prosecution which holds the election on whether matters are to be dealt with summarily in the Magistrates Court or proceed to the Supreme Court. The Criminal Code also lists some indictable offences which the prosecution can elect to have determined summarily, that is, by a magistrate.

On the other hand, the Criminal Code provides for a variety of indictable offences which the defendant can elect to have heard summarily. these are always subject to a magistrate’s overriding discretion. A magistrate can refuse to deal with a matter and transfer it to a higher court if he or she considers that the offender, if found guilty, may not be adequately punished given the options open to the magistrate. This is because when a magistrate deals with a charge that would otherwise be referred to a higher court, the magistrate can only impose limited penalties on an offender found guilty. 

THE MAGISTRATES COURT

As mentioned before, all matters generally start in the Magistrates Court. If they are minor offences, or indictable offences which are to be dealt with summarily, the matter will be heard in the Magistrates Court. At the defendant’s very first court appearance, the case will be “mentioned” before a magistrate.

A “mention” is a brief court appearance to settle issues such as legal representation, the defendant’s intended course of action when the matter will next come before the court, and bail (if not already granted by the police following arrest). If these issues are not yet settled, the court can adjourn (postpone) the case for a couple of weeks to allow time for either side to attend to any necessary matters. 

Pleas of Guilty

If a plea of guilty is to be entered it can normally be done very swiftly, often at the first mention date. It is advisable to obtain legal assistance before entering a plea of guilty.

Upon entering a plea of guilty, the defendant will listen to the police prosecutor read out a summary of the case against him or her. The defendant is then entitled to address the magistrate to explain:

• why he or she committed the offence; and
• any factors which might lessen the punishment for the offence.

Following this, the magistrate will normally consider what he or she has heard from both sides and then impose a punishment on the defendant. 

Hearings

If a person does not want to plead guilty, the matter is set for a “hearing” where the magistrate hears evidence and decides whether or not the accused person is guilty. Hearings in the Magistrates Court are often heard a couple of months after the first mention.

An accused is entitled to see all of the exhibits and witness statements collected by the police prior to hearing. On the other hand, a defendant generally does not have to disclose his evidence to the police in advance of the hearing.

The normal process followed at a hearing is that the prosecution calls each of its witnesses one at a time. Each witness is examined (questioned) by the prosecutor and then cross-examined by the defendant (or the defendant’s lawyer).

The prosecutor can then re-examine the witness on a limited basis if need be. At the conclusion of the prosecution case, the defence can then present its case if it wants to introduce any evidence.

Every defendant is presumed to be innocent and it is the prosecution that must prove guilt beyond a reasonable doubt. Therefore, an accused person has the right not to give evidence and can elect to not call any other witnesses. If the defendant elects to give evidence or call other witnesses, the order of questioning outlined above is reversed during the defence case. 

Committal Hearings

If a charge cannot be heard by a magistrate, it will have to be transferred to the appropriate higher court - either the District Court or Supreme Court. The committal hearing is the most common procedure by which criminal cases are transferred from the Magistrates Court to a higher court. Committal hearings proceed before a magistrate acting alone and are usually held 6 to 8 weeks after a person first appears in court.

Prior to the committal hearing, the police investigator finalises the investigation and puts the versions of each witness into a statement. These statements are compiled into the “police brief”, and forwarded to both the prosecutor and the defendant’s lawyers.

At the committal hearing the statements within the police brief are usually provided to the magistrate. The defence then indicates whether it wishes to cross-examine (question) any of the prosecution witnesses. If an accused person intends to ultimately plead guilty in the higher court, he or she will not normally wish to question any prosecution witnesses. On the other hand, a person wishing to plead not guilty in the higher court will often question these witnesses.

The primary purpose of such an exercise is to test the accuracy and reliability of the prosecution witnesses to see if there is sufficient evidence to justify the case being transferred ("committed") to a higher court. The accused person is not required or expected to give evidence at committal.

The magistrate will look at whether there is sufficient evidence to commit the accused to the appropriate higher court. This means the magistrate will make an assessment as to whether a reasonable jury, properly instructed on the law, could hear the evidence and be satisfied, beyond a reasonable doubt, that the accused committed the offences, that is, convict the accused. In practice this is an easy test to satisfy and the vast majority of persons proceeding through committal hearings are committed for trial to a higher court.

If a person is not committed to a trial because the magistrate is not satisfied to the appropriate standard, the proceedings are dismissed and the accused person is free to go. If there is sufficient evidence in the magistrate’s opinion, the matter will ultimately go to trial in the higher court.

It is important to realise that the committal hearing does not focus upon the question of guilt or innocence. It is largely an administrative procedure by which the defence is given an opportunity to test the prosecution case against the defendant, and seek to establish the strengths and weaknesses of the case against him or her. 

DISTRICT AND SUPREME COURT

After committal, the matter leaves the Magistrates Court and will be mentioned in either the District or Supreme Court a couple of months later.

In the interim, the Director of Public Prosecutions (“DPP”) will prepare an “indictment” setting out the charges against the accused. The indictment is simply the higher courts’ version of the original police charges. After the indictment is presented to the superior court, the defence must advise the court whether the matter will be a “sentence” (a plea of guilty) or a trial (a plea of not guilty).

If the plea is a guilty plea, the judge will set a future date for a sentencing hearing which can normally take place within a matter of weeks. However, if a plea of not guilty is to be entered, the matter will proceed to a trial.

If either side need more time, for example to conduct further inquiries or to negotiate, the court may simply adjourn the matter for a month or so to allow the necessary issues to be attended to. After that period of time the matter will be “mentioned” before the court again to update the court on progress and have the matter set for sentence or trial as need be.

There are some important differences between proceedings in the Magistrates Court and proceedings in the District and Supreme Courts. Proceedings in the higher courts (District and Supreme) are more formal, and consequently more time consuming. Judges are dressed in wigs and robes, as are the barristers who represent both the prosecution and the accused. When an accused person pleads not guilty and therefore goes to trial, all issues of fact are determined by a jury rather than by the judge. This is significantly different to the Magistrates Court where the magistrate determines all questions of law and fact even at a hearing where the defendant pleads not guilty.

Another difference between the courts is that where an accused person is represented by lawyers in the District and Supreme Court, then usually that person will not be required to attend at preliminary mentions in the court prior to trial or sentence. In the Magistrates Court the defendant generally has to appear every time, even if legally represented. 

FURTHER INFORMATION 

This Information Outline is available courtesy of AussieLegal’s online legal information and law firm referral service. 

If you want further information, we recommend contacting the law firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at 3^rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000, or call them on (07) 3229 3166. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.