Chapter 10: Preparation

There is some very important basic research and preparation required for a court case. I suggest you consider all these points:

  • collect evidence rapidly;
  • obtain charge details;
  • research the law;
  • consider your defences;
  • investigate the prosecution case;
  • use subpoenas; and
  • apply to have the charges dropped.

Good reference books for research and preparation include Criminal Practice and Procedure NSW by R Howie and P Johnson and Criminal Investigation and Procedure Victoria by Ian Freckelton. Search the catalogue of a large library (for example, a university library or State library) to find current editions of books on criminal procedure.

Collect evidence early

If you are arrested, it is vitally important that you make notes of all of your recollections of the incident, including conversations, who did what, and in what sequence. Pay attention to detail, and write your notes as soon as possible after the event. Notes made within hours of the event may become admissible evidence; notes made days later will be of much less help. Make sure police do not see or take your notes.

Make sure to also obtain, as soon as possible:

  • a doctor's written record (and photographs, if possible) of any injuries you may have suffered;
  • photographs or videos of any of the circumstances leading to your arrest; and
  • any physical evidence, for example, documents, blood on clothes.

Make sure then that you also collect the written statements of all other witnesses, as soon as possible – within hours or days, rather than weeks, when memories of detail start to fade. Get their statements, not promises that they'll give you one!

In some circumstances it may be better if an independent person, such as a lawyer, takes the statement from a witness. This may avoid an accusation that you 'commissioned' the evidence. Regardless of who takes the statement, you must make sure that it gets done!

Obtain charge details

You should obtain some important details from the police or prosecution, as soon as possible:

  • the charge sheet – which should state the charge precisely, and generally give a 'statute reference';
  • the particulars – a 'facts' sheet which contains details of what precisely you are meant to have done; and
  • the brief – a collection of the prosecution witnesses' statements.

You are legally entitled to at least the first two of these things. The first should be provided immediately (though it may later be amended), while the second should be provided very soon after or at the time of charge. In a Magistrates or Local Court hearing you will probably only get access to full statements just before the hearing begins. In the case of a jury trial, you should be provided with the brief some time before the committal hearing.

The name of the arresting officer, or at least the charging officer, should appear on the charge sheet and the 'facts' sheet. If not, ask for it. If there are particulars that appear to be missing, ask the prosecutor for them, or ask for them when you're before the magistrate. Use mention dates at court to demand further particulars, if necessary.

If adequate particulars are not provided, request an adjournment until they are. You are entitled to know exactly what you will be required to answer at your hearing or trial.

Research the law

Once you have a copy of the charge sheet and the particulars, you can look up the relevant law. The best place to find up-to-date NSW Acts and Regulations is on the NSW legislation website. For NSW offences you may be dealing with the Crimes Act 1900, the Bail Act, the Evidence Act and the Summary Offences Act 1988. For offences under Commonwealth legislation look at the Commonwealth Crimes Act 1914, the Criminal Code 1995 (Cth) and the Evidence Act 1995 (Cth). You can find these Acts on the official government website Federal Register of Legislation (formerly ComLaw) and on the AustLII website. Your charge sheet should mention the relevant Act and section. You should get a photocopy of the section so you can refer to it when preparing your defence.

These Acts of Parliament (or statutes) must be observed to the word by the courts, so pay attention to their exact wording. Each offence listed in an Act carries with it important details:

  • the elements of each offence (there are often two or more issues that have to be proved to establish the offence); and
  • the maximum penalty for the offence.

Once you have this statutory information, you will need to look at what common law applies. The common law, or judge-made law, is made up of cases that have interpreted the statutory law. For this information you'll need to go to the Commonwealth and State law reports, but useful summaries are contained in some basic law manuals. The most valuable of these are loose-leaf services, which are updated as legislative amendments are made and usually spell out the elements of each charge.

If, for example, you have been charged with obstruction, you need to identify each major element of the charge. The prosecution needs to prove each major element beyond reasonable doubt. Legally, your task in defending the charge is then to establish a 'reasonable doubt' about at least one of these major elements. The charge sheet could look something like this:

That Mary Brown at Marrickville, Sydney, on the 23rd day of September 2005, intentionally obstructed Constable John Plodd, a member of the police force, in the due execution of his duty.

Break this charge down into its essential elements, as follows:

1. That Mary Brown at Marrickville, Sydney, on the 23rd day of September 2005 …

The prosecution has to prove this beyond reasonable doubt – but usually the details of person, place and date are accurate. If not, the prosecutor can usually amend it (with the court's permission) unless the trial and evidence has proceeded on a different basis for some time.

2. intentionally obstructed Constable John Plodd

The prosecution has to prove this beyond reasonable doubt – and this may well be the most contentious issue.

3. a member of the police force

This is probably not an issue – but the prosecution must still prove it.

4. in the due execution of his duty

The prosecution also needs to prove this beyond reasonable doubt – and this is also open to attack. Was Plodd acting unreasonably? Unlawfully? The prosecution must prove that he was acting 'in the due execution of duty' and not on some individual venture of his own.

You will need evidence – either through cross-examination of prosecution witnesses (for example, by questioning John Plodd) or by calling your own witnesses – to support your challenge to the elements of this charge.

Where possible when researching the law, seek advice from experienced lawyers, as there is a web of interrelated Acts, common law and rules of practice. It is here that case law may be helpful. You might be able to find judgments that have considered behaviour similar to Constable Plodd's to be unreasonable, or outside the execution of duty. These judgments can be quoted in support of your case.

Consider your defences

While the central part of a defence is to knock down, or rather cast doubt on, the elements of the charge(s), there are also some common law and statutory defences that you can raise. A little research is required to see which would be most valuable to argue. The following are some possible options:

Common law defences

These are defences 'at large', which may be applied to defend one's actions against all sorts of charges. Defences make actions lawful, which otherwise would not be. They include:

  • self-defence (now a statutory defence in New South Wales, for some offences);
  • insanity (unfit to plead);
  • mental illness;
  • necessity;
  • reasonable or lawful excuse;
  • duress; and
  • claim of right (for example, you did not intend to steal something but believed you owned it).

In addition, two defences:

  • diminished responsibility; and
  • provocation,

may mitigate the penalty or reduce a charge of murder to the lesser, alternate charge of manslaughter.

In the example above, Mary Brown could argue that she had every right to be out on the street in Marrickville at a demonstration, and that it was the police who created trouble. If she had also been charged with 'assaulting police', she may like to argue that any contact with the police was by way of self-defence.

Statutory defences

An offence contained in an Act of Parliament will sometimes have a particular defence written into it, such as 'without lawful excuse' or 'without reasonable excuse'. If this is the case, you may like to argue that you had a 'reasonable excuse', and you would typically need to prove this 'on the balance of probabilities' (that is, more likely than not). You need to check the Acts from which the statutory charges come. Case law may also be helpful. You may be able to find cases similar to yours where 'reasonable excuse' was successfully argued.

Jury defences

These are not legal defences, but matters you can legitimately raise (especially if unrepresented) in a jury trial. They are simply appeals to the jury's sense of 'a fair go', and may be very valuable. For example: an otherwise inoffensive and unarmed person is charged with 'assaulting police' as the result of a confrontation of some sort, and the person sustains more injuries than the police. Isn't pressing charges a case of the police having their 'cake' and eating it too? Or, if police have singled out one person from a group or crowd for arrest, you may tell the jury of this discrimination involved in the arrest, and they might take this into account.

Investigate the prosecution evidence

When you have the particulars of the charge, and even more importantly, the statements of prosecution witnesses, you are able to check the facts asserted in those statements. You can ask a friend or a lawyer to interview prosecution witnesses. The prosecution does not 'own' its witnesses, and they are able to speak to anyone. However, it may be better for the person charged not to directly approach them, in case a suggestion is made that they are being intimidated. The prosecution witnesses might be able to provide information that may help your case, as much as it may help the case of the prosecution.

If you have been committed for trial, contact the District or Supreme Court Registry and ask for a copy of the 'depositions' from the committal (that is, the transcripts of evidence). These should be provided free of charge. Also ask for a copy of all exhibits tendered at the committal, and a copy of the proposed indictment. The prosecution may change the wording of the indictment between the committal and trial, but if they do so they must give you a copy.

As with collecting evidence from your own witnesses, take steps to investigate prosecution evidence as soon as possible. The more you know about the prosecution case and their witnesses, the more informed your questions will be at trial.

You can investigate prosecution witnesses' assertions by questioning other witnesses about the same events, or by looking at documentary records of those events. Some records are available for the asking, but there is also a process (the issuing of subpoenas) by which you can demand that specified documents be produced to the court.

Use subpoenas

Being before the court on a charge allows you to use some of the authority of the court to force disclosure of evidence. For instance, you may wish to subpoena (call for) a police officer's notebook, to check against her or his statement; or you may subpoena police, governmental or private records relating to an action you were involved in.

A subpoena may also require that a person appear in court to give evidence, or to produce relevant documents. It may, however, be risky to subpoena people to give evidence if you don't have a statement from them – you cannot predict the evidence they will give, and it may not all be helpful to your case.

A court official or lawyer will tell you how to fill out a subpoena, which must be stamped by the Clerk of the Local Court or Registrar. Courts also usually have a filing fee, which you have to pay unless you have legal aid or a low income. You, or someone on your behalf, must then physically 'serve' the subpoena on the party from whom the evidence is required (that is, deliver it to her or him personally). You should keep a record of when and by whom the subpoena was served, in case it is denied that a subpoena was received. Subpoena return dates should be well before the hearing or trial date, to allow time to check any information they might disclose.

In court you will have to 'call on' the subpoena, that is, ask for the person to produce the documents, or produce herself or himself to give evidence.

Be careful in drafting a subpoena. It must be for some 'legitimate forensic purpose', relevant to the charge. If it is not precise enough (too wide or too vague) then it may be ruled invalid, and you will have wasted your time and money.

Apply to have the charges dropped

Police have a discretion (subject to the scrutiny of the court) to withdraw a prosecution. An application may be made to the Officer in Charge, Prosecution Office at the Regional Headquarters of the region involved in the matter. The officer will consider these criteria:

  • the triviality of the offence;
  • the character of the defendant;
  • any demonstrable error of fact or law on the part of police; and
  • any psychiatric or medical issues.

In practice though, once a charge is laid, prosecutors generally only consider whether or not they can prove the charge.

In more serious matters, prosecuted by the Director of Public Prosecutions, a prosecution may be 'no billed' (that is, not prosecuted) even after it has been committed for trial. In this case the application is made to the office of the Director of Public Prosecutions. In your application you may like to point out the weakness of the prosecution evidence against you (if it is weak) or indicate the existence of powerful defence evidence. However, don't give away too much of your defence case. If you do go on to trial, for tactical reasons, you may wish to save some surprises for the prosecution.

Representations for charges to be withdrawn, or for matters not to proceed to trial, may require adjournments of several months while they are being determined. Notice that adjournments will give you more time to prepare your case, if the charge does proceed.

Applying for a stay of proceedings (that is, a temporary or permanent suspension of the case) is another means of avoiding a trial. You can apply to the court for a stay, for example, on the grounds that the prosecution is an abuse of process. You can also apply for a quashing of the indictment, on the grounds that on the facts stated, an offence is not disclosed.

Other applications that may be made before a trial include an application for orders for a separate trial, or for a separation of the counts (if there are multiple charges). For example, if you are charged with several robberies, you can reasonably argue that you would face great prejudice before a jury if all charges were heard together. The jury might be so suspicious that they would convict, even if the evidence were thin on each count.

Sources of legal information

  • The State Library of NSW has an extensive collection of legislation, caselaw, legal textbooks, electronic databases and looseleaf services. Find Legal Answers, a service of the State Library, provides quality legal information to NSW communities through the public library network and the Find Legal Answers website. The Find Legal Answers Tool Kit, a collection of plain English books about the law, can be found in all NSW public libraries.
  • The NSW legislation website for current Acts and Regulations.
  • Australasian Legal Information Institute (AustLII). This has a large amount of legislation and case law, including legislation and High Court of Australia judgments.