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Court procedure

This section discusses:

  • putting things on the record;
  • court appearances; and
  • court protocol.

Putting things on the record

The first thing to remember about your first appearance in court is that it is an important opportunity to put things on the record. For example, make sure you tell the magistrate at the earliest possible opportunity if:

  • you have been bashed by police;
  • you have a complaint;
  • you are injured;
  • you have made no statement to the police; or
  • you have been forced to sign a statement.

If you don't raise these sorts of issues at your first opportunity, that 'failure' may be used against you later to cast doubt on your claims.

Court appearances

When your case first comes before a magistrate, it will be for the charge to be recorded. Final determination of the matter may be put off to another date. Sometimes when there is a plea of guilty, the matter may be set down for sentencing at a later date. For example, the magistrate may want a pre-sentence report. However, if you plead guilty to a minor charge there is a good chance the magistrate may proceed to sentence immediately. Note that it is unwise to immediately plead guilty to any charge without due consideration and advice (see Pleas).

If you are charged with an offence and given bail, you will be given or sent a bail notice telling you when and where to appear before the court. Notices of trials in the higher courts (usually listing the court number and the presiding judge) are published online. For example see the NSW Department of Justice website for court lists and sittings.

When you arrive at court, check the court lists (they are usually posted up on a wall) to see which courtroom you need to attend. The list will state the names and charges of the cases being dealt with. Make sure you are either in the courtroom, or very near it, when your matter comes up. If you cannot be found when the matter is due to be heard, you may be taken to have failed to attend. If you are on bail, this might affect your chances of continuing bail.

In between your first appearance and a hearing or trial, there may be one, two or many 'callovers' or 'mentions'. These are simply court appearances to arrange for the case to be fitted into the court timetable, once there is some idea of how long the hearing may take, and bearing in mind that the courts are crowded and there may be long delays. At any one of these mentions a 'plea' – of guilty or not guilty – may be lodged.

If a plea of guilty is lodged, the matter may either proceed immediately to sentencing (in the Local Court) or it will be listed for sentencing. If a plea of not guilty is lodged, the matter will be listed for a hearing. Evidence may be called at sentencing matters, as well as at contested hearings, but usually contested hearings will take up more court time and will therefore be listed after sentencing matters, which come on more quickly.

The usual order of business in a Magistrates Court is:

  • first, unopposed adjournments or matters for callover or mention, which take very little time;
  • second, pleas and bail applications;
  • finally, defended matters.

You should make efforts to check on the availability of your witnesses (and your lawyer, if you are represented) when dates are being set for hearings. Tell the court which dates suit you. It is difficult to get an adjournment once a matter is listed for a hearing. If for some reason a lawyer who is acting for you decides she or he cannot appear for you on a day listed for a hearing, you should ask for an adjournment. However, there is no guarantee you will get it. Some people have been forced to proceed by themselves in these circumstances.

Court protocol

Whenever you speak to a magistrate or judge, or if they ask you a question, you are expected to stand up. Lawyers used to refer to magistrates as 'Your Worship', and judges are addressed as 'Your Honour'. In New South Wales, both are now called 'Your Honour'. You're expected to stand up when a magistrate or judge enters the court, but there's no need to bow, as lawyers do.

Some basic politeness is wise in court, but don't degrade yourself. The magistrate does have the power in her or his court to have people arrested and charged for 'contempt of court' – for offensive or disruptive behaviour in the court. However, even if you don't like the magistrate, you have to deal with her or him. This is the person you have to convince to treat you fairly.

Police prosecutors and lawyers stand behind the 'bar table' in the courtroom when presenting their arguments, or asking questions of witnesses. If you represent yourself, stand next to the table unless, or until, the magistrate invites you to stand behind the table. As an unrepresented person, the magistrate is supposed to assist you with some of the basic procedures, such as asking you if you'd like to ask a witness any questions. (If you do your research properly, you'll have such questions prepared in advance!)

Most criminal matters (more than 95 per cent) are heard in the Local Courts. The vast majority are minor charges, for which there are relatively small maximum sentences. Magistrates generally hear the minor charges, while the more serious charges are heard in the District Court and Supreme Courts (with judges and juries).

Some serious charges can be heard summarily

There are, however, a number of 'in-between' matters. Many serious charges may now be heard summarily in the Local Courts; sometimes this requires your consent. This change has been made to process cases more rapidly and with less public expense. The main advantage for a defendant is that the sentences imposed could be lower.

The maximum penalty a magistrate can impose for any offence is lower than sentences in the higher courts. In New South Wales, for multiple offences, a magistrate can give cumulative sentences of up to five years' jail.

Maximum penalties are rarely imposed but a high maximum penalty indicates the likelihood of a high actual penalty. Notice that in the case of a more serious charge – such as break, enter and steal, which in New South Wales carries a maximum penalty of 14 years' jail – the penalty in a Magistrates or Local Court can never be as high as that for the same offence in the District Court. This is designed to encourage defendants to plead guilty and have their matters heard quickly and relatively inexpensively in the Local Court.

The advantages of having a hearing in a Magistrates or Local Court are that the matter is heard quickly, the maximum penalties are generally lower, and you retain the right to appeal to a judge in a higher court. If you have a significant police record, you may wish to take advantage of the lower maximum penalties of a Magistrates or Local Court.

The advantages of having the matter heard in a higher court are that the facts will be determined by a jury, and the judge is more accountable for her or his decisions during the trial. If the prosecution case is weak or you are not confident of the impartiality of the magistrate, a District Court trial may appear more attractive. Note though that jury trial decisions can generally only be appealed to the Court of Criminal Appeal on points of law.

For more information on court procedure, see the following sections: