Criminal Law Process in the Local Court of NSW
The court process can be confusing and overwhelming, particularly if you have never been to court before. To help you understand what to expect, we have prepared a step-by-step guide outlining the general court process and the key stages that may arise in a criminal law matter.
The Local Court of New South Wales derives its powers and jurisdiction from legislation including the:
• Criminal Procedure Act 1986 (NSW)
The following guide provides a general overview of how a criminal matter may progress through the Local Court and what you can expect at each stage of the proceedings.
Already Have a Lawyer but Want to Change?
If you are currently represented by another lawyer but would like Abbas & Co Lawyers to take over your matter, you can change your legal representation. Contact our office and we can explain the process and take the necessary steps to transfer carriage of your matter to our firm.
Have a Grant of Legal Aid?
If you already have a grant of Legal Aid NSW and would like Abbas & Co Lawyers to represent you, see our Legal Aid NSW section for information about requesting that your grant of aid be assigned to our firm.
Representing Yourself but Want a Lawyer to Take Over?
If, at any stage during the court process, you decide that you no longer wish to represent yourself, or you are considering changing lawyers, Abbas & Co Lawyers is here to take over.
Contact our office on (02) 8764 4753. Once you engage us to act on your behalf, we will take carriage of your matter and manage the court process from there, so you do not have to navigate it on your own.
GENERAL COURT PROCESS
There are two main types of criminal offences in New South Wales:
1. Summary offences
2. Indictable offences
These offences can follow different court processes. Understanding the type of offence you have been charged with can help you understand which Court will deal with your matter and what the court process may look like.
Some criminal offences must remain in the Local Court, while others may proceed to the District Court or Supreme Court of NSW.
Summary Offences
Summary offences are generally less serious offences and are dealt with in the Local Court.
When an offence is dealt with summarily, it simply means that the matter is dealt with and finalised in the Local Court rather than proceeding on indictment to a higher court.
Generally, an offence must be dealt with summarily where:
1. the law requires the offence to be dealt with summarily;
2. the offence is classified by legislation as a summary offence; or
3. the maximum penalty for the offence does not include imprisonment for more than 2 years, subject to certain exceptions.
Indictable Offences
Indictable offences are generally more serious criminal offences. However, being charged with an indictable offence does not necessarily mean that your matter will go to the District Court or Supreme Court.
Some indictable offences can still be dealt with summarily in the Local Court. Under the Criminal Procedure Act 1986 (NSW), certain indictable offences are listed in Table 1 and Table 2 of Schedule 1.
Depending on which Table the offence falls under, the prosecution and, in some circumstances, you may elect to have the matter dealt with on indictment.
If the required election is made, the matter will no longer stay to proceed summarily in the Local Court and will instead progress through the indictable court process towards the District Court or Supreme Court of NSW, depending on the offence. This is known as Committal Proceedings.
When Will You Find Out?
At the early stages of your matter, including your First Mention, the Court will identify how the matter is to proceed. Depending on the charge and the circumstances, an election may be made at that stage or at a later stage of the proceedings.
If the matter remains in the Local Court, it will proceed through the summary court process. If the matter proceeds on indictment, a different court process applies before the matter progresses to the District Court or Supreme Court of NSW.
Your First Court Date: The “First Mention”
You are at Court for the first time. What happens now?
Your first appearance before the Court is commonly called the “First Mention”.
We understand that you may have a lot you want to tell the Court about your matter. You may want to explain what happened, provide your side of the story or respond to the chargesagainst you. However, the First Mention is generally not the time to present your evidence or explain the full circumstances of your case.
One of the main purposes of the First Mention is to determine how you intend to respond to the charge. You will be asked whether you wish to enter a plea of Guilty or Not Guilty.
If you are unsure about how you should plead, you can ask the Court for additional time to consider your position and, if necessary, obtain legal advice or representation. The Court may adjourn your matter for 2 weeks to another date to give you time to do so.
An adjournment simply means that your matter is postponed and brought back before the Court on a later date. For example, the Court may adjourn your matter for two weeks to allow you time to consider your plea or obtain legal advice.
When your matter returns to Court, you will be expected to advise the Court how you intend to plead.
So, the next question is an important one: how do you decide whether to plead Guilty or Not Guilty?
Plea of Not Guilty
If you do not accept the charge against you, including because you say you did not commit the offence, the charge/s do not accurately reflect what occurred, or you have a legal or factual defence, you may choose to enter a plea of Not Guilty
For example, you may plead Not Guilty because you rely on a legal defence, such as self-defence, or a factual defence, such as an alibi.
When you enter a plea of Not Guilty, your matter will most likely not be finalised at the first mention. Instead, the Court will make directions for the matter to progress and it may be listed for a hearing in the Local Court. A hearing date may be several weeks or months after you enter your plea, depending on the Court’s availability, the complexity of your matter and the amount of time required for the hearing.
After you enter a plea of Not Guilty, the Court will generally make a Brief Service Order. This means the Court will set a date by which the prosecution is required to serve the brief of evidence.
If you are legally represented, the brief will generally be served on your lawyer’s law firm. If you are representing yourself, you will need to provide your contact details so that the prosecution can serve the brief of evidence directly on you by the date ordered by the Court.
Service of the Brief of Evidence & Changing your Plea to Guilty
The brief of evidence contains the material the prosecution intends to rely upon in support of the charges against you. This may include witness statements, police statements, photographs, CCTV footage, body-worn camera footage and other relevant evidence.
Once the brief has been served, you will have an opportunity to review the evidence against you before your matter progresses further.
If, after reviewing the evidence, you decide that you no longer wish to maintain your plea of Not Guilty, you may choose to change your plea to Guilty.
If you want to change your Plea to Guilty and your matter has already been listed for hearing, you should contact the Court before the hearing date and advise that you wish to change your plea. You can request that the hearing date be vacated and that the matter be re-listed for mention so that you can enter a plea of Guilty.
See our “Court Contact Details” in the Resources section of our website to find the contact details for the relevant Court. (insert hyperlink to Court Contact Details).
If you are legally represented, your lawyer can communicate with the Court and take the necessary steps on your behalf.
For information about what happens after a plea of Guilty is entered, see the “Plea of Guilty” section below.
At the Hearing
At the hearing, the prosecution bears the burden of proving the charge against you beyond reasonable doubt. You are not required to prove your innocence.
The prosecution may call witnesses, including the complainant, police officers or other relevant witnesses, to give evidence about the alleged offence. You, or your lawyer (if you are legally represented), will generally have an opportunity to cross-examine the prosecution witnesses and challenge their evidence. Depending on the circumstance, you are not required to give evidence or call witnesses.
After considering the evidence presented by both sides and the applicable law, the Court will determine whether the prosecution has proved the charge beyond reasonable doubt. If the prosecution meets that standard, you may be found guilty and the matter will then proceed immediately to a sentence hearing. If it does not, you will be found not guilty and the charge/s will be dismissed.
Plea of Guilty
Do you accept the offence you have been charged with and agree that the Facts Sheet is an accurate account of what occurred?
If you accept that you committed the offence and do not dispute the allegations against you, you may choose to enter a plea of Guilty.
When you plead Guilty, your matter may proceed to sentence immediately and be dealt with and finalised on the same day, or it may be adjourned to another date for sentence.
Sentence
If you already know before your first court date that you intend to plead Guilty, it is a good idea to begin preparing any supporting material you wish to provide to the Court in advance. This may include character references, medical or psychological reports, evidence of counselling or rehabilitation, or other documents relevant to your personal circumstances.
Having your supporting material prepared and ready to provide to the Court means that, after entering your plea of Guilty, you may be in a position to proceed directly to sentence on the same day, rather than requesting an adjournment to return to Court on another date.
If you are not ready to proceed to sentence, or you still need time to obtain supporting material, you can ask the Court to adjourn your matter to another date to give you sufficient time to prepare.
When your matter comes before the Court for sentence, you or your lawyer will have an opportunity to address the Court about the offence and your personal circumstances. This is commonly referred to as making submissions on sentence.
These submissions may address matters such as your background and personal circumstances, the circumstances surrounding the offending, any remorse you have demonstrated, the steps you have taken since the offence, your prospects of rehabilitation and the impact that a particular penalty may have on you.
The Court will consider the circumstances of the offending, the supporting material before it and the submissions made before determining the appropriate sentence.
Summary Proceedings Process
FLOW CHART FOR SUMMARY PROCEEDINGS
If your matter is proceeding on indictment, there are several steps that generally take place in the Local Court before your matter progresses to the District Court or Supreme Court of NSW.
This process generally involves 5 steps.
Step 1: Orders for the Brief of Evidence
At the first step, the Local Court will make orders requiring the prosecution to serve the brief of evidence. The matter is generally adjourned for 8 weeks to allow the prosecution time to prepare and serve the brief.
The brief of evidence contains the evidence the prosecution relies upon in support of the charges against you. It may include witness statements, police statements, CCTV footage, body-worn camera footage, photographs, forensic material and other evidence relevant to the prosecution case.
Step 2: Service of the Brief of Evidence
When the matter returns to Court, the prosecution is expected to confirm that the brief of evidence has been served.
If the prosecution says that a brief of evidence has not yet been served, the court will adjourn the matter to give prosecution time to serve the brief.
Once service of the brief is confirmed, the matter is generally adjourned for 6 weeks to allow the prosecution to file a Charge Certificate.
Step 3: Charge Certificate
When the matter is adjourned for charge certificate, it is adjourned so a senior prosecutor can examine the evidence to make sure it supports the charges laid. Sometimes, the prosecutor can ask the police to serve different or additional charges as sometimes, the evidence does not support the charges laid but, it supports a lessor charge.
At the third step, the prosecution is required to file the Charge Certificate.
A Charge Certificate is a document filed by the prosecution confirming the offence or offences that will proceed against you.
A charge certificate sets out the offences that are to proceed is filed with the Court and served by the prosecutor on the accused.
The matter will then be adjourned for 8 weeks to allow for the next step occur known as Case Conference.
Step 4: Criminal Case Conference
If a plea of guilty is not already entered,
What happens next from the filing of the Charge Certificate will depend on whether you are legally represented.
If You Do Not Have a Lawyer
If you are not legally represented at this stage of the proceedings, the Court will generally adjourn your matter for 2 weeks to give you an opportunity to obtain legal advice and, if you choose to do so, arrange legal representation.
If you decide to remain self-represented, you are not required to participate in a Criminal Case Conference.
If you obtain a lawyer during the 2-week adjournment period, your matter can then proceed through the usual Criminal Case Conference process.
If you decide that you would like a lawyer to take over your matter, Abbas & Co Lawyers is here to assist. Contact our office on (02) 8764 4753. Once you engage us to act on your behalf, we will take carriage of your matter and manage the court process from there.
If You Have a Lawyer
If you are legally represented and have not entered a plea of Guilty, your matter will generally be adjourned for 8 weeks to allow the Criminal Case Conference process to take place.
When the Court grants the 8-week adjournment, it will generally expect to be provided with the date scheduled for the Criminal Case Conference. If a conference date has not yet been arranged, the Court may instead adjourn the matter for a short period, generally no more than 7 days, to allow a conference date to be organised.
During this period, your lawyer, barrister (if one has been engaged) and the prosecution will participate in a Criminal Case Conference.
The conference provides an opportunity for the parties to discuss the case before it progresses further. This may include discussing the charges against you, the evidence relied upon by the prosecution, any issues in dispute and whether any aspect of the case can be resolved or narrowed.
The Criminal Case Conference is generally expected to take place within the first 6 weeks of the 8-week adjournment.
Following the conference, a Case Conference Certificate is prepared to record the outcome of the conference, including the charges discussed and any offers or other matters required to be recorded. The remaining 2 weeks generally allow time for the Case Conference Certificate to be finalised and for any further or amended charges to be filed before the matter returns to Court.
When is a Criminal Case Conference not required?
A Criminal Case Conference is not required in certain circumstances, including where:
• you are not legally represented;
• you have pleaded Guilty to the offence and your plea has been accepted by the Court before the Criminal Case Conference takes place; or
• an issue has been raised about whether you are unfit to be tried.
In these circumstances, the usual Criminal Case Conference process does not need to take place.
Step 5: Committal
The matter will return to the Local Court for what is known as the committal stage.
This is an important stage of the proceedings because it is generally when your matter moves from the Local Court to the District Court or Supreme Court of NSW.
At the committal stage, you will be required to enter a plea of Guilty or Not Guilty to the charge or charges proceeding against you.
What happens at this stage will depend on whether you are legally represented and the plea you enter.
If You Do Not Have a Lawyer
If you remain self-represented, you will be required to enter a plea to the charge or charges proceeding against you.
What happens next will generally depend on your plea.
If You Plead Not Guilty
If you plead Not Guilty, you will generally be committed for trial.
This means that your matter will leave the Local Court and progress to either the District Court or Supreme Court of NSW, depending on the offence, where it will continue through the trial process.
If You Plead Guilty
If you plead Guilty and the Court accepts your plea, you will generally be committed for sentence.
This means that your matter will leave the Local Court and progress to either the District Court or Supreme Court of NSW, depending on the offence, where you will ultimately be sentenced.
If You Have a Lawyer
If you are legally represented, your matter will generally return to the Local Court after the Criminal Case Conference has taken place.
At this stage, the Case Conference Certificate will be filed with the Court, together with an Charge Certificate (or amended Charge Certificate), if the charges have changed following the case conference process.
You will then be required to enter a plea to the charge or charges proceeding against you.
If You Plead Not Guilty
If you plead Not Guilty, you will generally be committed for trial.
Your matter will then progress from the Local Court to either the District Court or Supreme Court of NSW, depending on the offence, where the matter will continue through the trial process.
If You Plead Guilty
If you plead Guilty and the Court accepts your plea, you will generally be committed for sentence.
Your matter will then progress from the Local Court to either the District Court or Supreme Court of NSW, depending on the offence, where you will ultimately be sentenced.
Committal Proceedings Process
Flow Chart for Committal Proceedings
