CRIMINAL CHARGES THAT GO TO THE DISTRICT AND SUPREME COURTS
By law some criminal offences must be dealt with in the District or Supreme Court, because they are considered too serious to be dealt with in the Magistrates Court.
If your charge/s is/are dealt with in the District or Supreme Court and you are sentenced, then a Judge will preside over the hearing of your sentence. However, if you go to trial, the trial will be heard before a Judge and jury, but ultimately the jury will determine if you are guilty of the offence/s beyond reasonable doubt.
Even if your offence/s is/are ultimately going to be dealt with in the District or Supreme Court you will first start off in the Magistrates Court. In the Magistrates Court your matter will go through the committal process and your matter will be mentioned at the committal callover.
What are “mentions”?
A mention of a matter in Court refers to when a Magistrate or Judge reviews a matter. At the mention, both the prosecutor and defence lawyer will appear in Court. The Prosecution and defence will inform the Magistrate or Judge what is happening with the matter, where it is at, and if the defence require the Prosecution to disclose any material (e.g. witness statements, recordings, CCTV footage or records). A matter can have a number of mentions before it is ultimately resolved by way of a sentence or trial.
Do I need to appear at mentions?
Generally you must appear at the first mention of your matter, even if you are legally represented. Please see below if you would need to appear at the first mention of your matter.
If you are legally represented, then generally your lawyer can request the Magistrate to excuse your appearance at each mention, subsequent to the first one, provided you maintain regular contact with them.
If you are not legally represented, then you must appear at each mention of your matter, otherwise the Magistrate is likely to issue a warrant for your arrest.
THE FIRST MENTION OF YOUR MATTER IN THE MAGISTRATES COURT
Do I need to appear at Court?
This depends on:
(1) How you have been charged (e.g. Notice-to-Appear or charged at the watch-house); and
(2) If you are legally represented.
If you have been issued a Notice-to-Appear
- You must appear even if you are legally represented.
If you have been charged at the watch-house and you have been placed on bail
- If you don’t have a lawyer you must
- If you have a lawyer appearing at the mention for you, then your lawyer can generally appear for you and request that your appearance be excused, without you having to be present at Court. Please discuss this with your lawyer.
If you were arrested by police and processed through the watch-house and granted bail, then bail is unlikely to be an issue raised at your first mention.
If you have been issued a Notice-to-Appear, then the issue of bail will be raised (i.e. whether or not the police object to you being granted bail on your own undertaking or with conditions).
If police make an application for you to be refused bail (remanded in custody), then you will have to make submissions (orally tell) to the Magistrate why you should not be refused bail (bail is discussed in another section of this book, but you would specifically want to refer to Section 16 of the Bail Act 1980 (Qld) when considering what to tell the Magistrate).
If police have remanded you in custody before your first mention, the Magistrate may ask you if you want to make an application for bail. PLEASE NOTE, if you make an application for bail in the Magistrates Court and you are refused bail, then you cannot make another application for bail in the Magistrates Court, unless you can show a change in your circumstances. This does not apply for an application being made for bail at the conclusion of a committal hearing. At the conclusion of a committal hearing, the issue of bail is considered afresh and you are not required to demonstrate a change in your circumstances.
WHAT ARE MY OPTIONS AT THE FIRST MENTION OF MY MATTER?
We recommend you seek legal advice before your first mention, so that you are fully appraised of your options.
If your matter is being heard in the Brisbane Magistrates Court, then the first mention of your matter will generally be at the Roma Street Magistrates Court (the arrest Court). At the first mention, the Magistrate will most likely adjourn your matter to the committal callover (which is heard at the George Street Magistrates Court) on another date. However, please note that the issue of bail will be raised.
You generally have 3 options: –
Option 1: Plead Guilty.
Option 2: Adjourn to obtain requested material.
Option 3: Adjourn for a full brief-of-evidence.
Option 1: Plead Guilty
You could accept the facts and charge/s alleged against you as stated in the QP9 Court Brief and have your matter committed for sentence, so that you can be sentenced in the District or Supreme Court (please note this course of action is rare).
Option 2: Adjourned so the Prosecution can provide requested material
Your matter could be adjourned to another date for a further mention, to allow the Office of the Director of Public Prosecutions (“DPP”) or Police Prosecutions to provide you with copies of requested witness statements and/or exhibits (e.g. CCTV footage, your interview with police, copy of text messages from mobile phone seized by police etc.).
You may want the Prosecution to provide you with certain witness statements and/or exhibits, before determining what you want to do. This adjournment will generally be for 21 days as per Magistrates Court Practice Direction 9 of 2010.
Option 3: Adjourned for a full brief-of-evidence
Your matter could be adjourned to another date, to allow the DPP or Police Prosecutions to provide you with a copy of the full brief-of-evidence.
A “full brief” is defined in the Magistrates Court Practice Direction No. 10 of 2010 as:
“ means a brief which contains copies of signed statements of witnesses and exhibits upon which the Prosecution proposes to rely on in the proceeding and all things in the possession of the Prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the defendant”.
The full brief-of-evidence should contain all of the evidence the Prosecution intends to rely upon in proving their case against you (i.e. all of the evidence they need to prove each offence).
In some circumstances you may want to see all of the evidence the police have against you before determining what you want to do.
How long does it take to get a full brief-of-evidence?
There is no hard and fast rule to this question, because it can vary from matter to matter. However, for the majority of matters, Magistrates will generally follow Practice Direction 10 of 2010 and make an Order that the full brief is to be disclosed to the defence within 35 days and adjourn the matter for a further mention in 49 days
(7 weeks) time. In some situations a matter can have a number of Court mentions beyond the 49 day period and before the full brief is disclosed to the defence. This can be for a variety of reasons, including police having difficulties in obtaining statements from witnesses who are not in Queensland or are away on holidays and/or delays encountered with preparing scientific, fingerprint or technical evidence.
I have been provided a full brief-of-evidence, what now?
Upon a full brief-of-evidence having been disclosed to you by the Prosecution, the defence must decide if there are any witnesses that they want to cross-examine about any issues. Such cross-examination would take place at what is called a “committal hearing”.
What is a Committal Hearing?
A committal hearing is a hearing before a Magistrate, where witnesses are cross-examined (generally by a defence lawyer/barrister) to test the evidence and explore issues.
Does everyone have a Committal Hearing?
Defendants no longer have an automatic right to a committal hearing. There are basically two ways in which there will be a committal hearing:
(1) If the Prosecution consents to the defence cross-examining witnesses on specific issues; or
(2) If the defence make an application to the Court seeking to cross-examine witnesses and this application is successful.
At the conclusion of a committal hearing, defence lawyers/barristers can either consent to the Magistrate committing the accused for trial, or they can make a “no case submission” to the Magistrate that there is insufficient evidence to put the accused on trial.
What is a “no case submission”?
If a no case submission is made, the Magistrate is required to consider all of the evidence and determine if in their view there is sufficient evidence to put the accused to trial (i.e. commit the offences the accused is charged with for trial). The test for the Magistrate to exercise is, taking the Crown case at its highest, has a prima facie case been made out?
The test of whether or not a prima facie case is made out has been considered in a number of cases. The case often quoted by Magistrates, although it did not relate to a matter at the committal stage, is the High Court of Australia case Doney-v-The Queen (1990) 171 CLR 207 where at pages 214 and 215 the Court said:
“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”.
In the majority of cases, Magistrates do find that a prima facie has been made out and commit an accused for trial. If for some reason the Magistrate is satisfied that there is not sufficient evidence to place an accused on trial, then they must discharge the accused.
What if my lawyer decides a committal hearing with cross-examination is not needed?
If there is not going to be a committal hearing, then your matter needs to be transferred from the Magistrates Court to the District or Supreme Court. Which Court your offences are transferred to will depend on what they are.
There are 2 ways matters can be transferred from the Magistrates Court without witnesses being called to give evidence, and these are:
(1) Full-hand-up committal
This essentially involves a Court hearing whereby the Prosecution tenders (hands to the Court) all of the witness statements and a list of exhibits to the Magistrate. This is the compulsory process for persons who are remanded in custody.
(2) Registry committal
This does not involve a court hearing. This process involves the defence and Prosecution completing A Notice of Intention to Proceed via Registry Committal which is filed in the Court.
What happens after the matter is transferred from the Magistrates Court to the District or Supreme Court?
Once your offences have been “committed up” to the District or Supreme Court by the Magistrates Court, the Magistrates Court will send you or your lawyer a copy of a document, which is called a “Transmission Sheet”. The “Transmission Sheet” lists amongst other things: –
- What the matter is committed for (e.g. trial or sentence).
- If you made any statement to the Court about the charges (e.g. No thank you Your Honour” or “Guilty Your Honour”)
- The offences that have been committed.
- The Court where the offences have been committed to (e.g. District or Supreme).
- What your bail situation is (e.g. if you have been granted bail, remanded in custody etc.).
The Office of the Director of Public Prosecutions (“DPP”) has 6 months from the date your offence/s are committed from the Magistrates Court to the District or Supreme Court to present an Indictment. However, if necessary, the DPP can make an application to the Court for an extension of time to present an indictment after the 6 month period. However, these applications are rare.
What is an Indictment?
An indictment is a document that is prepared and presented by the Director of Public Prosecutions in the District or Supreme Courts formally charging a person/s with an offence/s. CLICK HERE to see an example of an indictment.
The indictment lists each offence including: –
- the date of the offence.
- the place where the offence is alleged to have occurred.
- the text of the charge (the elements of the offence that the Prosecution has to prove) for the offence and the name/s of any complainant/s relating to the offence.
There are a limited number of persons who can sign an indictment, namely:
- the Director of Public Prosecutions;
- a Crown Prosecutor; or
- a person who has been given the commission to prosecute.
What happens before the Indictment is presented in the District or Supreme Court?
The DPP will send the defence: –
- a Notice of Trial- setting out the date the indictment will be presented and in which Court.
- a copy of the indictment that is being presented.
HAVE YOU GOT CRIMINAL CHARGES IN THE DISTRICT OR SUPREME COURT CALL US NOW!
CRAVEN CRIMINAL LAWYERS
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