Charging a defendant

An indictable offence is a more serious offence than a summary offence. Indictable offences are usually tried before the Supreme Court in a jury trial. There are some indictable offences that can be dealt with summarily (by a magistrate). See Indictable Offences.

Deciding to Prosecute

Although it may appear that a person is at first sight guilty of an offence, the police officer may decide not to go on with the charges because of any one of a number of reasons including:

• the old age, or youth, or illness of the offender;
• the offender’s willingness to give evidence against someone else;
• the fact that the relevant law is obsolete, or unpopular, or controversial; or
• the breach of the law was only technical or trivial.

Bringing the Defendant to Court

For court proceedings to commence the defendant must first appear before the court. Arrest is one method of getting the accused to court. Another is by way of summons, especially in traffic offences, taxation offences and breaches of local government provisions. In these cases, the defendant is served with a summons giving the date the matter is to be listed before the court. A summons is normally served by a police officer, who either gives it personally to the person to whom it is directed, or leaves it with someone else at the person’s last, or most usual, address.

Instead of a summons, a warrant may be issued empowering police to arrest a person and bring them before a court. This usually happens when the offence is so serious that it is feared they will disappear if only a summons is issued, or if the person’s address is not known, or they have disobeyed a summons before.

The above procedure applies to both adult courts and Youth Justice Courts.

Details of Charges

Defendants should be given enough information about the alleged offence (particulars) to enable them to conduct their defence properly. For example, in dangerous driving cases, defendants should be given details of the exact time and place of the alleged offence and in what way the driving was supposed to be dangerous. Police may be reluctant to provide these particulars, but should produce them if requested. This should be done in writing so that evidence of the request, if refused, can be produced in court.

Under Tasmania Police policy, a defendant may obtain a copy of the prosecution brief prior to the commencement of the case.  Additional information may be available under right to information legislation. A Right to Information Unit exists within Tasmania Police headquarters.

In Court

Courts of Petty Sessions sit every weekday in major centres. A Court also sits less frequently in country centres, usually at council chambers. Cases are conducted before a magistrate who sits at a raised bench at the front of the court. Most criminal cases are the result of police action, and the case for the police is presented by a police prosecutor (normally not uniformed) from a large table called the bar table in front of the magistrate. A clerk usually sits below the magistrate recording the proceedings. The proceedings are recorded. Court hearings for summary offences must be heard in public except where a child or young person is concerned. The court can, in special circumstances , sit in a closed court from which the public are excluded (Justices Act 1959 (Tas), s37).

If the defendant is represented by a lawyer, the lawyer will sit at the bar table, and the defendant will sit next to the lawyer. Unrepresented defendants have a chair placed for them near the bar table, facing the magistrate. It is usual for a defendant in custody to remain in the dock (a closed box in the middle or back of most courts) even if unrepresented.

First Appearance in Court

If a person has been arrested and charged with an offence, they will have to appear personally before the court when the matter is listed. This is normally on the day they are charged, or the next day. This applies even if the person is represented by a lawyer at the first hearing.

A person who is summonsed to appear before a Court of Petty Sessions must appear personally even if a lawyer appears on their behalf. If no appearance at all is made, the magistrate may issue an arrest warrant or hear the case in the person’s absence (Justices Rules 2003 (Tas), rule 32).

On the first appearance in court, the charge is read out. The defendant cannot be made to enter a plea (that is, say whether they are guilty or not) at this stage, and certainly should not plead unless they have legal advice to do so. A defendant should seek legal advice before this first appearance if possible.

Magistrates Courts now operates an ‘Adjournment Court’ between 9.30 and 10 am for first appearance matters.

If the defendant wishes to plead not guilty and defend the charge, the case will be adjourned to another date. The prosecution will not be ready with witnesses on the first appearance. Also, the court will not have time to hear the case that day.

Adjournments

When a defendant first appears in court, the case will normally be adjourned for at least four to six weeks so that the defendant can obtain legal advice. If this is done, the case will be listed on the adjourned date as being for ‘plea’, meaning that the magistrate will hear it on that date if the defendant pleads guilty. Otherwise the case will only be ‘mentioned’ on that date in order to obtain a date for a full hearing. The magistrate has a general power, either before or during the hearing, to adjourn cases. Cases may be adjourned for any reasonable period, whether the defendant consents or not.

When the case is adjourned to another day for hearing, the defendant will have to appear personally on the adjourned date. If the case is merely to be ‘mentioned’, it may be possible, with a less serious charge, for the defendant not to attend, provided the prosecutor does not object.