Defending yourself in Court
If you are considering defending yourself in the Local Court there are a few things you need to consider. First, try to get representation from a solicitor or lawyer. Having someone who can advise you in the ever complex criminal law area, getting the right representation and defence can change the result from a guilty verdict to a not guilty one. If you cannot afford a lawyer, this can be used as a guide.
This is should not be used as legal advice and should only be used as a guide. You must receive legal advice about your individual legal problem(s) by a lawyer.
A. The Offence(s)
It is important and usually the first step in determining what offence or offences you have been charged under the Crimes Act. Usually Austlii is a good starting point to determine the offence and what type of conduct is alleged by the prosecution. Researching the offence of what you have been charged with is the first step. Usually the 'noteup' section on Austlii is a good starting point for researching other cases with the offence you have been charged with.
It is important to obtain and look at the Court Attendance Notice (CAN) to clarify the particulars of the charge. If the CAN does not clarify the particulars of the charge, you can request these particulars from the prosecutor before the hearing.
B. Elements of the Offence
It is very important once you have received the brief, and even before to identify the elements of each offence that you have been charged with. Each element are the individual components of the offence and the prosecution must prove each element beyond a reasonable doubt.
Try to get to Court early. Court usually starts sitting in NSW at 9.30am. have a look at this website to give you an idea of who is who in the Court room. It is also important to address the Magistrate as 'Your Honour'. If a Registrar is sitting be sure to address the Registrar as 'Registrar'. A good idea is to listen to the Prosecutor when they address the Judicial Officer. Try to be respectful to the Court, its staff and the prosecutor, as they are all performing their jobs. You must listen carefully what is said to you either by the Judicial Officer or by the Prosecutor. Its also important to remember to stand when addressing the Magistrate or to stand if the Magistrate is talking to you.
Before Court begins, try to locate the Court Officer to inform them you are unrepresented and to inform them you are at the Court House. The first day you attend Court is usually called a mention date. Its important to remember there are other matters at Court and you may need to be patient until your matter is called by the Court Officer.
When your matter is called, and you approach the Bar Table, the Judicial Officer will ask how you will be pleading to the charge. You have options to answer, 'pleading not guilty, Your Honour', which is where you are stating you have not committed the offence or 'pleading guilty, Your Honour', if you are stating you have committed the offence.
As this is about pleading not guilty, the Judicial Officer will usually give two dates, the first date for a 'brief to be served', which is a brief of evidence which is the evidence the Prosecution will be relying on to try and convict you of the charges and adjourn the matter for a 'reply' date. These are two important dates that you need to note down when the Judicial Officer states them. If you have been charged with a domestic violence offence, the Judicial Officer will set a date for the brief to be served and set the matter down for a Hearing.
At the reply date the Judicial Officer will ask if the brief has been served. If you have not received a brief, the Judicial Officer may adjourn your matter again to the service of the brief is effected or give another date for the brief to be served and set the matter down for a hearing.
D. Your version of events
If you are pleading not guilty, you must ensure that you write down your version of events.
Have a think about how you want to tell your story. Decide what you want the Magistrate to hear about your version of events and think about the best way to get your version across. It is good to prepare a checklist so you can make sure you don’t forget anything. A checklist will also help you to put things in a chronological order so the Magistrate doesn’t get confused about timing. Remember, the story is familiar to you but the Magistrate will know nothing about it. It is important that you put things in order for them so that they are able to follow what has happened and make their decision with the correct information.
Make sure you have collected all the documents that you have or can get hold of in order to support your claim. Bring along anything you think may help the Magistrate in making their decision. It is always good to have documents to support what you are saying and the Magistrate will want to see any documents you have. Try to get the documents organised so that you don’t waste time during the Hearing searching through a large pile of papers. It is a good idea if you can bring copies of your documents for the Magistrate and for the defendant.
Examples of documents you might bring along to support your claim are:
These are just some examples so feel free to bring along anything else you think might help.
If you have any witnesses to support your claim, organise for them to come along on the date of the trial. Only bring the people who are most necessary to your story. It will cost money for them to be heard at the hearing as compensation for the time they’ve taken to come to court. The costs of a witness will usually be awarded as costs against the losing party but don’t forget that it could be you paying those costs if you aren’t successful.
If you have a witness who refuses to come to court, you can serve them with a subpoena. This is an official court notice, ordering a person to attend court as a witness. Make sure that you absolutely need this person before serving them with a subpoena because they may not want to give too much evidence in your favour if you have forced them to come against their will. Only do so if it is completely necessary to your case.
E. Brief of Evidence
Once you have been served the brief always check the following have been complied with in the brief of evidence:
All statements have been signed and dated;
that any expert certificates included in the brief comply with sections 177(2) and 177(3) of the Evidence Act; and
Other requirements under section 177 also comply.
Police and prosecutors may seek to serve additional statements within 14 days of the
hearing date, and frequently even on the date of the hearing. You can object to the contents of the statement being led as evidence in the hearing, as evidence not served in accordance with the procedure set out in the Criminal Procedure Act is inadmissible (s188 Criminal Procedure Act).
It is for the prosecution to provide reasons as why the evidence contained in the
statement should be led. The evidence may still be led, as a court has the power though
to order that all or part of the brief not be served (s 187(1) Criminal Procedure Act) or to adjourn the proceedings to allow the prosecution to comply with s 183 Criminal Procedure Act (s 187(4) Criminal Procedure Act).
F. The Hearing
Both the Criminal Procedure Act (particularly Chapter 4 Part 2) and the Evidence Act contain a number of important sections relating to the taking of evidence from witnesses.
The prosecution will present their case first. In the Local Court the prosecution generally calls witnesses in this order:
1. Police witnesses.
2. The alleged victim.
3. Other witnesses (including expert witnesses), if any.
After the prosecution has finished their case you will get an opportunity to present your case. You will be asked to sit in the witness box to give your version of events and tell the Magistrate your story.
If you have witnesses that you will be calling in your case, you have to determine:
• What relevant evidence they will give.
• What the credibility of their evidence will be.
• In what order you will call them.
The closing address is the last opportunity where you will have to present your version of the events and your position in relation to the facts and the issues to the Magistrate. The closing is a presentation of an argument as to why you should be found not guilty.
written by Tas Tasdemir