Approaching the court

Estimated reading: 45 minutes 14 views

Going to court can be a daunting, or invigorating, experience. The nature of the court system is intimidating and can be isolating for activists.

However, going into court with an understanding of what to expect, coupled with knowledge of why you’re there, can make it a politically effective part of the campaign.

The legal system is a complex array of courts, state and federal parliaments with confusing jargon and immense power to change and enforce laws, and imprison, fine or otherwise penalise people.

Contained in this section is some introductory information to help you understand the language and sequence of events involved in a court case.

Callovers or mentions

Cases often appear in the court’s lists several times before there is a hearing, or before sentencing occurs. These occasions are known as “callovers” or “mentions” and are used to find out how you will plead, and how many hours or days will need to be allocated for a hearing.

Cases can go ahead on the “mention day” only if you are pleading guilty, as neither the arresting officer nor any prosecution witnesses will be attending court on the mention day. If you are pleading not guilty, the case will have to be adjourned (postponed) to a date when the court has time to hear it and all the witnesses are available.

You can also ask for your case to be adjourned from the “mention day” even if you want to plead guilty, to allow time for character references and pre-court reports to be obtained. It is useful sometimes to apply for an adjournment in order to ask the police in writing for all of the evidence they plan to reply on. This is essential in appraising the strength of the case against you.

If you are unprepared for your case it may be better to get your case adjourned. If it is a “mention day”, you will be automatically entitled to at least one adjournment.

If you are in any doubt as to whether the hearing date is a “mention day” and whether you are on bail, you should telephone the court.

Public statements and contempt

Contempt law is against any public comment on an issue that is before the courts and is to be decided by the courts. Notice though that the issue to be decided is often a narrow one (did a person commit a particular offence), and this does not prevent public discussion of the background or wider context of the events concerned.

So, for instance, the charging of a demonstrator at an environmental action does not prevent others from criticising police operations at that demonstration, nor from talking about what the action was all about. Many lawyers advise against public comment that in any way relates to a court case.

It is not based on a fair interpretation of contempt law, nor on a proper consideration of the right to freedom of expression. Police, courts and conservative lawyers often attempt to block political expression by the threat of contempt action. This is mostly bluff.

Magistrates have no real power of contempt outside their own courtrooms, and contempt actions have generally only been laid after public comments very close to a jury trial. People are not prosecuted for proclaiming their innocence of a charge, which is their right.

As always, seek specific legal advice if you are considering making public comment that may be a contempt, as it can carry the penalty of imprisonment.

Your support network

If you are due to attend a court appearance, it is important to have support people accompany you as well as a lawyer. Invite other people involved in the original action to court for support and solidarity. Too often, those who find themselves in court feel deserted by others involved in the campaign. It is essential for campaigns to commit long term to supporting all members, particularly through the legal process.

See Organising Legal Support section

Also invite friends and family for support. It is important to remember that you are not a criminal and the reasons that you have been involved in a protest remain valid. Magistrates do take into account the level of support in court.

Diversion Program

The Criminal Justice Diversion Program provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that will benefit the offender, victim and the community as a whole. It is an opportunity to avoid a court hearing. It is necessary to plead guilty to the offence to access the program.

Should you be 17 or under, the Ropes Program is available to avoid a court hearing.

Always ask your lawyer or the magistrate if you are eligible for a diversion or Ropes program.

Go to the Magistrates’ Court of Victoria for further information.

Sentencing

A person who pleads guilty, or who is found guilty, may wish to call evidence in mitigation of the penalty that is, to minimise the penalty. Maximum penalties are rarely given. There are a broad range of factors which may be taken into account at sentencing. Some of these include: age, good character, previous good record, employment, and the circumstances of the offence.

It is a good idea to obtain references addressed to the magistrate from “respectable people” who can say something about your good character, charitable work, employment prospects and so on. Two references will suffice.

If you have pleaded guilty, you are entitled to a discount from the ordinary sentence, for saving the prosecution and the court the trouble of proving a case against you. You may still appeal a decision and apply for a lighter sentence if you plead not guilty and are convicted.

Jail sentences are rarely given for a first or minor offence. If you receive a short jail sentence (less than 12 months), appeal bail is often given.

Possible penalties
In general the penalties which a court may give for criminal offences are set out in the Sentencing Act 1991 (Vic) as follows:
  • Dismissal of the charge with or without conviction (you essentially receive no penalty for the offence)
  • Fine with or without a conviction (you are required to pay money to the court)
  • Community-based order with or without a conviction (a specified number of hours of community work, possibly with other conditions such as counselling)
  • Detention in a youth training centre or youth residential centre (for persons under 21 years of age, this penalty involves detainment in centres which are specially set up to rehabilitate young offenders)
  • Conviction and a suspended sentence (a conviction is recorded against your name and you are sentenced to a period in jail, but you do not go to jail to serve that sentence unless you re-offend by committing an offence punishable by imprisonment within a prescribed time. A court can partially suspend a sentence, in which case you serve some time in jail and the remainder of the time is suspended)
  • Conviction and intensive correction order (a conviction will be recorded against your name and you will serve your sentence working in a prescribed manner in the community under strict supervision for 12 hours per week community work and appointments for a further three days per week. If you re-offend during the term of this order, you will be sent to serve the remainder of the term of the order in jail)
  • Conviction and a hospital security order (a conviction will be recorded against your name and, where the court has determined that you need treatment for a mental illness, your sentence will be served in a secured hospital while you are treated)
  • Conviction and a combined custody and treatment order (a conviction will be recorded against your name and your sentence will be satisfied by serving some time in jail and some time outside jail doing prescribed work in the community under strict supervision)
  • Conviction and a term of imprisonment (a conviction will be recorded against your name forever and you will be jailed for a period of time).

Appeals

Always appeal a bad court decision. This should be done promptly.

Almost every offence for which a person can be punished is capable of being appealed at least once to a higher court. In some cases you may consider the penalty too small to bother with the time and expense of an appeal. Consider also the desirability of removing a conviction from your police record. All states have provision where an offence can be “proven” but the court does not proceed to a conviction (Commonwealth matters: section 19B Crimes Act 1914 (Cth); section 75,Sentencing Act 1991 (Vic)). If there is to be no penalty and ultimately no conviction, it may be hard to justify the effort of appealing a bad decision.

In Victoria, there is a 28 day time period after the conviction, during which an appeal can be lodged. It is not impossible, but may be difficult, to appeal after this period. Lodge any appeal promptly. Appeals can be against penalty (severity appeals) or against conviction and penalty (all grounds appeals). Just ask the Magistrates’ Court registrar for an appeal form. Prisons will also have appeal forms available.

An appeal from a Magistrates’ Court in Victoria will be heard afresh before a single judge in the County Court. You should be aware that because these appeals are fresh hearings, there is also the potential for you to receive an increased sentence on appeal. Should you wish to abandon the appeal, you must do so within 30 days of lodging the appeal, or can judge can continue with it regardless of your wishes. An appeal from a jury conviction in the County Court will be heard by three judges in the Full Court of the Supreme Court. The High Court of Australia can review all the decisions of state Supreme Courts, but in criminal cases there is no right to appeal to the High Court. You have to seek leave to appeal, and it must be on a matter of important principle (that is, more important than your liberty!).

If you are acquitted (found not guilty), the police must destroy every copy of your fingerprints they have within one month. Police can, however, apply to the Magistrates’ Court to extend the period within which they have to destroy the fingerprints. The police do not have to tell you that they are making such an application (section 464O Crimes Act 1958 (Vic)).

Mention date

If you are charged with a less serious offence (summary offences) or certain indictable (serious) offences that are capable of being heard in the Magistrates’ Court, the first court date will be a mention.

If you are on bail, you must attend court on each day that your matter is listed, even if it is only to be adjourned to a later date. If you are on summons, your lawyer may arrange for you not to have to attend court on days where your matter is to be adjourned.

If you or your lawyer has obtained the brief of evidence prior to the mention hearing and it is clear that the charges which have been laid against you are supported by the evidence, your matter may be able to be dealt with on that day as a plea of guilty. This is where the defence lawyer will make a plea in mitigation, putting before the magistrate any matters on your behalf, seeking to mitigate the harshness of any sentence to be imposed.

Your case can be adjourned for a contest mention, at which arguments can be tested and the magistrate may indicate what the likely outcome will be. This may convince you to plead guilty, or convince the prosecutor to drop the charges. The ruling is not binding and a not-guilty plea will be heard at a later date, in a full trial with witnesses. All charges where a please of not guilty is entered will first go through a contest mention.

On sentencing, a magistrate will take a number of factors into consideration, including your personal circumstances, the circumstances of the offending, any prior court appearances, references and the impact on any victim. The magistrate may also take into account a plea of guilty as evidence of remorse and this will attract a discount on sentencing.

However, it is often the case that the police will have laid a number of charges which are unsustainable, or which are duplicitous. (This is sometimes known as a “hamburger with the lot”.)

For example, in the situation of a demonstration where property was damaged and some physical violence occurred, the police may lay a range of charges including intentionally causing injury, recklessly causing injury, assault, criminal damage, hinder police, refuse to obey a police direction, resist arrest; intentionally causing injury, recklessly causing injury and assault will be alternative charges relating to the one incident.

If you or your lawyer feels that some charges are unsustainable or duplicitous, your matter may be adjourned for a contest mention hearing. At this hearing, negotiations are entered into with the police informant, the police prosecutor and the defence. If the prosecution agrees to withdraw some charges and the matter can be resolved, it may proceed on that day as a plea of guilty before the magistrate.

If an agreement cannot be reached, the matter is taken into the court and usually the defence lawyer will indicate to the magistrate the issues that are in dispute. In some instances, the magistrate will provide a sentence indication advice as to the penalty that would be imposed if a plea of guilty was entered into before that magistrate.

If you want to plead not guilty and contest the charges (which is your right), the matter will then be adjourned for a contested hearing. This hearing is held before a magistrate only. All witnesses are called and cross-examined. The magistrate is the judge of the facts and the law.

If the magistrate is not persuaded of guilt beyond reasonable doubt the charges will be dismissed.

It is possible to apply for costs against Victoria Police once charges are dismissed. Whether costs are granted depends on a number of factors, including the way in which the defence case was run. The police prosecution may ask for costs to be awarded against you as well if you are found guilty of the charges.

If the magistrate finds you guilty of some or all of the charges, a plea in mitigation of sentencing will be made. One can appeal a decision of a magistrate if the appeal is lodged within 28 days. The matter can then be heard in the County Court.

If you are charged with a more serious indictable offence, your matter will be in what is referred to as the committal stream and will ultimately have to be dealt with either by trial or plea of guilty in either the County Court or the Supreme Court.

If your matter is in the committal stream, it is very important that you receive legal advice as soon as possible.

Court structure

The Magistrates’ Court

The Magistrates’ Court of Victoria hears and determines all summary offences and indictable offences that can be heard summarily, where the accused person was 18 or over at the time of committing the offence(s) or 18 or over at the time of the court case and, in the case of indictable offences triable summarily, consents to having their case heard summarily.

Go to the Magistrates’ Court website for further information.

Appearing before the court

A defendant can appear before a magistrate in person, or be represented by a barrister or solicitor.

If the person is unrepresented and has been charged with a criminal offence punishable by imprisonment the court must ask them if they have had the opportunity to obtain legal representation, and if they have not, the court may allow an adjournment so that they can seek legal representation.

Which court room?

If you are going to court for a court hearing of charges you are facing, you should arrive at court by 9.30 am. Whilst court starts sitting at 10.00 am it is unlikely that yours will be the first case to be dealt with. Most courts display a list which sets out in which court each particular case is to be heard. You may also be able to check the court lists by looking in the law section of the newspaper, on the website of the relevant court or by calling the Court registry. If there is no such list you should speak to the court registrar.

If you are pleading guilty to the charges and the matter is simple, your case is likely to be over by lunchtime. If you are pleading not guilty it is possible that the case may not finish until late in the afternoon, or take several days or weeks, depending on the seriousness of the matter.

Courtroom procedure

Whenever you speak to a magistrate or judge, or if they ask you a question, you’re expected to stand up. Magistrates and Judges should be addressed as “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. Attend the court where your case is to be heard so you can become familiar with the people, procedure and surroundings of the courtroom.

In argument the prosecutor may quote previous court decisions, or “case law” (common law precedents set by judges, from cases involving similar issues). If you have access to these law reports, you can also use them in argument, but they are not essential. The most important thing is to have your case well prepared, and to be thoroughly familiar with the issues and the evidence.

Bail, pleas and proof

Bail

Generally, you will be on bail until your “mention day” and bail will be extended on this day so don’t fail to appear! If you do fail to appear, not only might you be convicted in your absence, your failing to appear will jeopardise your chances of getting bail in future. You are also liable to immediate arrest for the offence of breach of bail. On the other hand, your appearing in court to “meet bail” can be used in your favour, in future bail applications.

Some charges are issued by way of a summons; if you are not on bail, you may not need to appear in court if your case is going to be adjourned.

Pleas

Minor offences may be dealt with on any mention date where a guilty plea is entered but never plead guilty without considered and independent advice! If you are asked to plead, and plead not guilty, a date for the hearing will be arranged (the hearing may not be listed for months, even years in some cases). It is possible to change a plea of not guilty to guilty, later on; however, to change from guilty to not guilty (especially after sentencing) is almost impossible.

Proof

In a criminal hearing or trial, it is always up to the prosecution to prove the offence, and this must be proved to a standard called “beyond reasonable doubt”. If a magistrate (or a jury in more serious cases) is convinced by you or your lawyer that a reasonable doubt regarding your guilt exists they will find you not guilty. In some cases there is a partially reversed onus of proof. For instance, if marijuana is found in your car or your bedroom, you must prove (but only on the “balance of probabilities”) that you did not know it was there; otherwise it is legally assumed to be yours.

The central issue in a criminal trial is always whether or not the prosecution has proved its case beyond reasonable doubt. No-one has to prove their innocence. However, once a person has been found not guilty, the law presumes that person to be innocent, on the basis that all people who are not proven guilty must be presumed innocent. This principle is not always respected by police and the media, but it is the law and a fundamental right. If a person is found not guilty, he or she is free to leave the court unless they are in custody for other charges which have not been resolved.

Self representation

Consider self-representation if you are confident you can prepare and present your case in court. If not, seek legal representation.

Consider self-representation in these circumstances:

  • If you feel confident with court procedure
  • If there is to be a credibility battle between yourself and police
  • If you’ve informed yourself of all the legal elements of the charges

People can represent themselves in court, provided they have standing in the court case (a defendant always has standing when facing a charge). At present, generally only solicitors and barristers can represent other people in court (although a friend of the court can sometimes be given permission to appear to assist the court). This means, unfortunately, that an articulate person cannot speak up for a friend in court (except as a character witness), and lawyers can charge very high fees.

You may consider self-representation for several reasons:

  • If you are not eligible for legal aid, yet cannot afford a lawyer
  • If you wish to directly confront witnesses who are not telling the truth
  • If you wish to speak strongly and directly to the tribunal of fact (magistrate, judge or jury)

The magistrate or judge is legally obliged to explain to you your basic rights, and the basics of court procedure, when you are self-represented. But it’s up to you to research and find out what defences you’ll run, what evidence you’ll call and what questions you’ll ask.

For self-representation, you should have three things:

  • The confidence to speak in open court, and to argue firmly and clearly against the opposing party
  • The time to fully prepare your case, arrange the collection of statements and research the relevant law (issues of principle concerning the charge and possible defences)
  • The ability to analyse and grasp clearly the elements of the charge, and the significance of the evidence. You should be able to stand back from the emotion of the matter, and assess the strengths and weaknesses of both sides, as if it were a sporting contest. Then you can take some advice and decide what tactics to employ

While you need to prepare and plan your case, there can be some advantages. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence or making a statement yourself. When questioning a witness about events in which you were involved, you are in control of the issues raised, and you can raise argumentative suggestions, which are not possible if and when you give evidence.

In effect, you give evidence twice when you are self-represented. It also does no harm to be able to speak directly to and with the tribunal (magistrate, judge or jury), rather than be regarded as a third party variously called the defendant (in magistrates’ courts) or the accused (in a jury trial).

More and more people are forced into self-representation, because of the severely limited public funds for legal aid. So it pays to prepare for the possibility of self-representation.

You must be prepared to do your homework, both by investigating the evidence and by studying the legal issues involved. Having support to do this is important.

Self-representation is often an empowering experience which also allows you to tell the court of the political context of your arrest. You may be able to do this much better than a lawyer. Community legal centres will usually be able to provide free advice when you are representing yourself.

In Victoria the courts now have the power to order the Legal Aid Commission to fund your case if they believe it’s necessary in the interest of justice. It is important, however, that you have done everything possible to arrange for your representation prior to going to court.

Court terminology

Following is a short guide to terminology:

Bench clerk

The bench clerk is the person who sits at the bench in front of the magistrate and who calls out the name of the cases as they take their turn to be heard. They also swear in witnesses before they give their evidence.

Committal hearing

A preliminary hearing before a magistrate to decide if the matter should go to trial.

Defendant & accused

In a criminal proceeding, a defendant faces a charge before a magistrate; an accused faces a higher court.

In a civil proceeding, a defendant is the person against whom an action (for compensation or some other remedy) is brought by a plaintiff or complainant.

Expert witness

A highly qualified person in a particular area who is able to give opinion evidence in his or her area of expertise.

Hearing & trial

A hearing is before a magistrate, a trial before a higher court (generally before a jury).

Judge/justice

A judge sits in the County Court, a justice sits in a state’s Supreme Court (or in the High Court of Australia).

Magistrate

A magistrate is the person who has control of the court. They will ultimately decide whether the defendant is guilty or not guilty, and where necessary, what is the appropriate penalty as punishment for the offence.

Prosecutor

The prosecutor is the person who conducts the police case in court. They are usually police officers in Magistrates’ Court hearings. If the defendant is pleading not guilty, the prosecutor will call police witnesses and other witnesses to give evidence against the defendant. They will also cross-examine the defendant’s witnesses. If the defendant is pleading guilty, the prosecutor will give a summary of the circumstances of the charges against the defendant to the magistrate.

Registrar

Registrars are court officials who are responsible for the administration of the courts. If the person charged, or any other person, has any questions about the court process, hearing dates etc, they should contact the registrar.

Statute and common law

Statutes or Acts are laws passed by Parliament. Common law is mostly supplementary to, and interpretative of statutes, and is made by judges through previous court decisions.

Summary & indictable offences

Summary offences are heard by magistrates; indictable offences are more serious and, either the prosecution or the defendant can request to have the charges heard in a trial before a judge and jury in the County Court. Some indictable offences are so serious that they must be heard in the County Court. Most demonstration/activist charges will be heard before a magistrate.

Hearings and trials

A hearing before a magistrate and a trial before a judge and jury (or a judge alone, if the accused person agrees) proceed in much the same way.

When the hearing begins, a formal plea may be taken, followed by an opening by the police or the state prosecutor. The prosecution evidence is then led, at the end of which you may argue that the prosecution has not produced sufficient evidence to make out the charge against you. If the prosecution has produced sufficient evidence, you may wish to (but need not) call defence evidence.

You may choose to give evidence, and thus be cross-examined by the prosecutor, or you may choose to “stand mute”, which means that you say nothing and cannot be cross-examined. In Victoria, it is no longer possible to give “unsworn evidence”, which meant that you could not be cross-examined on the evidence you gave. Remember, the defence does not have to prove a case, it just has to cut down or cast reasonable doubt on the prosecution case. (In practice this may mean substantial doubt.)

At the end of all the evidence, the prosecution addresses the court on their view of the evidence; then the defence lawyer or self-represented person does the same. In a hearing, the magistrate then gives a judgement. In a trial the judge sums up for the jury, which is then asked to decide whether the person is guilty or not guilty.

Lawyers

Understanding your legal rights and liabilities and the court process can be complicated and intimidating for activists without working knowledge of the legal system. If you are confident about representing yourself in court and have a clear understanding of relevant laws, you might consider not seeking representation at all from a lawyer.

Most activists, like other people in the community, would prefer to have legal advice and representation from qualified legal practitioners. The hardest thing to work out is who is going to give you the best legal advice.

Finding a lawyer that understands why you do what you do is important but can be very difficult. Many activists have found that lawyers may not understand the framework in which they operate and why they were arrested. Some lawyers may see their role as simply doing everything they can to get a finding of not guilty. It is important to feel that you can communicate with your lawyer and convey all relevant information.

Don’t let yourself be bullied by lawyers. Lawyers must act on your instructions, so be clear about what it is you want a lawyer to do for you by getting all the relevant information and making informed choices. Lawyers can be sacked at any time during the proceedings.

Make sure you talk to other people in activist networks to find out what lawyers activists have used in the past and found useful.

Remember that different lawyers have different areas of speciality. Some lawyers may be great in criminal proceedings but not familiar with the law in relation to civil matters. Some lawyers specialise in administrative or family law and may not be of any help in your case.

How do you choose your lawyer?

There are three questions you might ask yourself when deciding which lawyer is the best to assist you with your legal problem:

Does the lawyer have expertise in the relevant area criminal lawyer, civil or compensation lawyer, constitutional lawyer?

  • If you have been charged with a crime, you should seek representation from a lawyer who practises criminal law.
  • If you have been injured during a demonstration or in some other circumstance, you should seek assistance from an expert personal injury lawyer who can advise you on your rights to compensation.
  • If you wish to challenge a decision by a government body or authority, or obtain documents under Freedom of Information legislation you may need an administrative and public interest lawyer.
  • If you are unsure about how to select the right lawyer for your legal problem, consider contacting the Law Institute of Victoria or visiting a community legal centre for advice and assistance and referral.

Does the lawyer have a commitment and empathy for the social causes you are involved in?

Attending court can be a stressful experience. This is even more so when if you intend to make public statements about important political and social issues during a criminal or civil hearing. It is important to find a lawyer who understands that you may make decisions not based on whether you will be convicted or not, nor on how much compensation you might achieve, but on the long term impact your case may have on the pursuit of social justice. Speaking to other activists and reviewing media articles on past cases might help you find the right lawyer to represent you.

Cost of lawyers

Don’t spend any money on lawyers until you’ve checked whether you can: represent yourself , get legal aid , get help from a community legal centre , or obtain other free or cheap advice. However, don’t expect friendly lawyers to do substantial work for you free of charge.

Inform yourself very clearly about what costs are likely. The Law Institute of Victoria says lawyers should give their clients early and accurate estimates of likely costs. Many people, in distress with a legal problem, rush to a lawyer for help, then discover later that they have a bill for many thousands of dollars.

Lawyers are generally very expensive: barristers, for instance, may charge from $500 to $3000 per day; solicitors may charge several hundred dollars per day. Your court case could run over several days, so check all your options before committing yourself to an agreement with a lawyer.

At the same time, there are many lawyers who will offer free or pro-bono advice at first, then let you decide later whether you will hire them for more substantial work, such as days in court. Don’t abuse the help of those lawyers who offer advice freely by expecting them to work for many hours or days free of charge. We need to support those lawyers who support activists and community groups.

If you can’t afford to pay

There are many progressive lawyers in Victoria who are prepared to act for protestors for free or on a no win no fee or reduced fee basis. In criminal matters and some limited civil matters, you may also be able to obtain legal aid for your claim.

There are over 40 community legal centres located in suburbs all across the State. They often have drop-in legal advice services where you can obtain legal advice free of charge.

Legal Aid

If you are unemployed or a student, you may be entitled to legal aid. Legal aid is very difficult to get these days, as all governments have made cuts to their legal aid budgets. Priority is given to family and criminal law matters. Matters are strictly merit and means tested.

The vast majority of charges which arise from political demonstrations are summary (i.e. minor) offences, where it is unlikely that people charged will go to jail, especially if they have no (or very few) previous criminal charges. If you are pleading not guilty, under Victoria Legal Aid guidelines, you can only get legal aid for your legal representation if your likely fine is $750 or a more serious penalty and Victoria Legal Aid believes there is a reasonable likelihood of you being found not guilty on the most serious charge.

If you are pleading guilty, you must be at risk of receiving a penalty of at least a lengthy (200 hours plus) community-based order, intensive correction order, suspended sentence or imprisonment. This can often be argued, as magistrates can vary on the penalty imposed.

Sometimes, even if you don’t qualify for legal aid under these guidelines, you can argue that your case has special circumstances, because it involves important public policy questions (eg. police abuse and misconduct in making arrests may be such special circumstances). There are also special circumstances guidelines that allow legal aid to be given to people unable to represent themselves because of mental impairment, intellectual disability, youth, or language or literacy problems. These circumstances usually require documentation to support the application.

Nevertheless, always check your entitlement and apply for legal aid through a lawyer. Legal aid can also extend to the funding (at a relatively low level) of private solicitors to act on your behalf. Legal aid need not mean no choice of lawyer, nor need it mean poor representation. Many salaried or low-charging lawyers are more dedicated than, and just as competent as, the high-flyers.

If you are Aboriginal, the local Aboriginal Legal Service is an option that may be open to you. There are also community legal centres around Australia, which are well worth approaching for legal advice. There is no fee for service at these centres; it’s just a question of how much of their time they can provide, given their other work commitments. Some lawyers will give free legal advice to political or social groups or causes they support. Inform yourself through your organisation about what advice is available. Remember that solicitors and barristers act on your behalf, but are legally considered to have a basic loyalty or duty to the court. They are officers of the Supreme Court of the state in which they are registered. So you cannot say to a lawyer, for instance in an assault case: I hit the person, but can you get me off? The lawyer’s duty not to mislead the court will then mean that they cannot present facts contrary to what you have admitted to them in private.

The lawyer is ethically bound not to report what you’ve said or give evidence against you, but at the same time they will not be able to mislead the court. If you have admitted the charge to your lawyer they can support you in a plea of not guilty, but without contesting the facts that you’ve admitted. The lawyer could also plead for a reduced penalty, or stop acting for you and refer you to another lawyer, if you insist on pleading not guilty.

Duty lawyers

Most courts have lawyers on duty who can provide free, basic support for people who have not had the chance to see a lawyer before court.

Duty lawyers are people employed by Victoria Legal Aid who provide advice and support to people charged with a criminal offence and appear for them if necessary in bail applications and adjournment applications. They can also undertake pleas in mitigation if you are pleading guilty. Generally, they cannot conduct more complex defended cases.

It is not a good idea to rely on the help of duty lawyers as they are often busy and your case may not be a priority. It is a good idea to ring the Registrar beforehand to see if duty lawyers are available at the court you are attending.

Inform yourself

If you have a lawyer, listen to their advice, but also inform yourself about every step of the legal process you are in. Don’t leave the decisions to your lawyer.

You are finally responsible for the presentation of your case in court. Don’t surrender the control of your case.

In Australia there are no really effective mechanisms by which lawyers are held accountable for presenting an inadequate case on your behalf. If your lawyer fails to prepare or properly present your case, only you will suffer. So stay informed.

Furthermore, there is generally no appeal from your lawyer not properly presenting your case to a court. An appeal court will generally say that they are not interested in any differences you had with your lawyer, and that you should have sorted them out. The bottom line to this is a hard reality: if you are unhappy with the way your lawyer presents your case during a hearing or trial, and if you cannot resolve your differences, your only option is to sack them (to withdraw instructions) and conduct the case yourself. If you prepare for this, at least you will remember your responsibility for your own case.

If you have communication problems with a legal aid lawyer, you can complain to a more senior legal aid lawyer. Stay informed of, and involved in, all the major decisions of your case. Listen to advice, but remember that the decisions are ultimately yours.

Complaints about lawyers

If you become unhappy with the representation being provided to you by a lawyer, you can make a complaint to the Legal Ombudsman or the lawyer’s relevant professional association.

Legal Ombudsman
 
Level 10, 461 Bourke Street 
 
MELBOURNE VIC 3000
 
Tel: (03) 9642 0655 (Melbourne metropolitan) Tel: 1800 357 772 (Victoria toll free) 
 
email: [email protected]
Law Institute of Victoria
 
470 Bourke Street 
 
MELBOURNE VIC 3000
 
Tel: (03) 9607 9311 Fax:(03) 9602 5270

Before court

Facing the court can be a time and resource-consuming exercise. Cases particularly if you are pleading not guilty can drag on for considerable amounts of time. It is vital for you and the campaign to have a long-term commitment to this process.

Support from other campaign/group members, family and friends will make a real difference in how you experience the court process. Because courts operate in relation to individuals, people are made to feel isolated from fellow arrestees and activists. This is a strategy of the legal system. This means a campaign or activist group must be prepared to invest time and resources into supporting those facing the court.
Charge sheets

A charge sheet is issued directly after your arrest or by mail summons. The charge sheet names the offences you allegedly committed and states in what section of which Act they are included. Also included is the name and station of the informant, usually the arresting office. Looking up the Act and reading the full text of the section may reveal defences you could use.

Charges for summary offences cannot be laid more than 12 months after the event (section 26(4) Magistrates’ Court Act1989 (Vic)).

Information sheets are usually attached to the charge sheet, for example saying that under the Magistrates Court Act 1989 (Vic), you can ask for a copy of any material they intend to use to prosecute you with. By writing and asking, you may receive copies of any video footage or still photos, or access to viewing them.
Visit a court

It can be useful to familiarise yourself with a courtroom before your case is heard. Courts are open to the public. The physical layout of a courtroom can be intimidating and it is a good idea to get used to the space so that when you are in a court setting, you are more comfortable and therefore better able to put forward your case. Also, it allows you to see another case being heard and get a sense of the court process.
Jurisdiction

Many activists find themselves facing the court in a different state or territory from where they live. This can mean travelling great distance for a court appearance that may be adjourned on the day.

This could affect the way you plead (whether guilty or not guilty), as resources, time constraints, work etc may make it difficult for you to travel to court.
Showing up

You should be in court for every hearing. Although sometimes you can arrange to have a lawyer appear for you at a hearing, it is almost always better to be there in person. Statistics show this regarding the changes of success and the penalty imposed.

Your presence shows the court (and the media) that you care about the case and that you are ready to fight. Also, being there ensures that you will have input into decisions and negotiations that come up in court.

If you have a trial, you have to be in court for every day of it. If you miss a scheduled hearing, the judge could issue a warrant. If you have an outstanding warrant for failing to appear in court, and get into any kind of trouble (e.g. your car gets pulled over), you’ll probably be arrested.

Judges may accept extreme excuses for missing a hearing, like funerals or medical emergencies. Conflicts with school or work are not acceptable excuses. Medical certificates are no longer deemed adequate; a letter from a hospital confirming hospitalisation will suffice.

Rules of evidence

One of the most difficult aspects of a trial is the successful leading of evidence, and the questioning of witnesses. This area is governed by a large body of technical rules that will be quite daunting to anyone unfamiliar with running court cases. A brief explanation of some of the commonly encountered rules will be provided, but if it is necessary to represent yourself in a trial or hearing it is strongly advisable to speak to a lawyer for guidance on this area. The best general text on the Australian rules of evidence is J.A. Gobbo’s Cross on Evidence (4th Australian edition).

There is a large body of precedent law that covers the way evidence can be led in trials and other court hearings. Three important features of the law of evidence will be described here: the rules on hearsay, the rules on opinion evidence and the Browne & Dunn rule:

  1. The rule against hearsay generally excludes a witness saying what someone else said, or said they saw or heard. You can only ask your witness, in court, to give direct evidence of what they saw or heard or experienced directly of a particular incident. An exception to this rule allows evidence of hearing “admissions” to crimes. So, for instance, police are allowed to tell the courts they heard arrested suspects “confess” in the police station although there are procedural requirements which must be followed, such as tape recording interviews and giving correct warnings.
  2. Opinion is generally not allowed to be given as evidence, unless it is by a person who is considered to be an expert in the relevant field. Generally witnesses cannot say what they thought, assumed, inferred or concluded about any incident. They must stick to what they observed.
  3. The Browne & Dunn rule requires you (or the prosecution) to give an opposing witness a chance to respond to any contradictory evidence that you may later call. For instance, if you are going to say that a police officer hit you and that officer gives evidence, you have to put it to him and allow him to respond; if you do not the prosecution will be allowed to recall him after your evidence, to contradict you.

Finally, an important thing to keep in mind is that there exists at law a basic principle that individuals can only be prosecuted on evidence that is relevant to their alleged crime. Thus facts relating to a previous criminal record are not admissible. One of the major exceptions to this is that if the defendant attempts to use evidence of good character to show that it is unlikely that they did the alleged acts. In this case, by claiming good character you also allow the prosecution to raise bad character, ie any past convictions you may have, in response. If you didn’t raise character, the magistrate would have to decide the question of guilt without knowing about these past convictions. Evidence of good character can still be led in regard to sentencing, as discussed below.

Examination & cross-examination

One of the more difficult aspects of self-representation is to understand the rules of evidence. You should take some advice on how to call evidence from your witnesses, as this is when the rules are most restrictive.

Leading questions
When you first question your witnesses, this is called examination in chief. Generally, you usually ask open questions that allow your witnesses to tell their version of events. You cannot suggest answers to your witnesses or lead your witness. Questions such as, ‘Were you wearing a white baseball cap? will not be allowed because all the witness has to do is answer yes. The answer is already supplied in the question. It will be necessary to ask first, Were you wearing anything on your head at that time? and then ask what colour it was.
Cross-examination
Cross-examination is when you question the prosecution witnesses. Since they have already been questioned by the prosecution you are now allowed to ask leading questions. Generally speaking, cross-examination is a lot easier, but you should be aware that very few cases are actually decided on the basis of skilful cross examination (despite what Hollywood might say!). Also, remember that in cross-examining a witness, there is always the danger that you will give a prosecution witness the chance to say something they were not able to say, or forgot to say, in examination in chief and which may harm your case. The most important rule in cross-examination is – NEVER ASK A QUESTION OF A WITNESS THAT YOU DON’T KNOW THE ANSWER TO.

The best cross examination is one where an overall inference can be put together from the witness’s answers, rather than one where the witness crumples in a heap in a witness box. It is very rare for witnesses, especially police witnesses, to trip themselves up in an obvious way. But a good cross-examination can paint a picture from their answers that supports your case.

Another related idea is that it is important to not ask too many questions, and to know when to stop asking questions. As tempting as it might be, never actually put the inference you have created in a question to the witness it will only give them a chance to explain their way out of it. As an example, if the witness has admitted that the street was very dark when they saw someone vandalising a shop, do not ask them how they managed to see the person. Most likely they will come up with a good explanation that you were not expecting. Once they have admitted it was very dark, that should be enough.

The other important thing to remember in cross-examination is to never shout or try to bully the witnesses it will only isolate the magistrate.

Subpoenas

These are documents that you can serve on any party to require that documents relevant to your court case to be produced to the court. Being before the court on a charge, therefore, allows you to use some of the authority of the court to force disclosure of evidence. For instance, you may wish to see a police officer’s notebook, to check against their statement; or you may wish to see governmental records relating to an action you were involved in.

A lawyer will tell you how to fill out such a form, which must be stamped by a court registrar. There will usually be a court filing fee, which you will have to pay. The subpoena is required to be physically served on the party from whom evidence is required together with conduct money, i.e. sufficient money to pay for the witness’s travel costs to court (usually $5.00).

People can also be summoned to appear in court to give evidence, through subpoenas; however it is risky to call a witness from whom you have no statement. Take care and take some advice, on how to draft subpoenas. If they are not precise enough, you may have wasted your time and money.

Common law defences

The prosecution always has to prove, beyond reasonable doubt, that you have committed the offence charged. If there are a number of elements to an offence, then each of these elements must be proved. In most cases, you will be trying to show that the prosecution has failed to prove its case to the required standard (“beyond reasonable doubt”).

But even if the prosecution can prove its case, there are usually “defences” open to you. If you can establish one of these defences, then you will be found not guilty. The burden of establishing a defence is on you; you must prove the defence “on the balance of probabilities”.

Defences to charges are often written into the particular legislation creating the offence, such as the Victorian and Commonwealth Crimes Acts. These are called statutory defences. However, there are also some “common law defences” (based on decisions by judges in previous cases) which can apply to many charges. For instance, “self-defence” and “necessity” might be defences not only to the various charges of assault, but also to protest-related charges.

For instance, you might feel that your life and safety, or social well-being, are fundamentally threatened by a particular corporate or political decision. Your actions may have been motivated by a sense of necessity or self-defence.

Defences such as necessity and self-defence can be very hard to establish successfully. Even if a conservative magistrate might not accept your argument, the fact that you raise the formal defence gives you an entitlement to be heard on your matters of concern. As a compromise, the magistrate might well take your defence into account as “mitigation” (reducing your culpability for the “wrongfulness” of the offence), when she or he sentences you!).

The major common law defences that might be used in a variety of charges (unless excluded by statute) include:

Self-defence
Necessity
Claim of right

For instance, you can legally defend yourself against actual or threatened violence so long as you don’t use excessive force: you can’t shoot someone who threatens to evict you, as this would be an excessive response to the threat. On the defence of necessity, magistrates generally decide that threats to the survival of humankind by nuclear war and environmental damage are not a “great and imminent danger”; but you can still run the defence and explain your actions.

Honest and reasonable belief

On the defence of “honest and reasonable belief”, you may be able to state that you believed you had a reasonable excuse for being on a certain prohibited area, for instance, in relation to a charge of trespass. For example, you may state, if it is true, that you had received an invitation and permission from the traditional Aboriginal owners of the area to be on that particular land.

Some charges need authorization

Most charges can be brought by anyone. However, charges involving offences against the police can generally only be brought by police.

There are many Commonwealth charges that require permission from a particular official before they can be brought. For example, offences against the Public Order (Protection of Persons and Property) Act 1971 (Cth) may only be instituted with the consent in writing of the Commonwealth DPP or those authorised by him/her (section 23).

This does not prevent the arrest or charging of these offences, but it is a necessary proof for the completion of the prosecution. In the case of Gulf War protests on Defence Department land the charges were dropped when the Commonwealth Department of Public Prosecutions, following representations, declined to give the necessary consent.

Commonwealth places

Whilst most State laws apply to Commonwealth places (see Commonwealth Places (Application of Laws) Act 1970 (Cth )) specific Commonwealth provisions often displace State laws altogether.

For example, section 25 of the Public Order (Protection of Persons and Property) Act 1971(Cth) excludes the common law in relation to unlawful assembly, rout and riot from all Commonwealth places. It also excludes the operation of the Unlawful Assemblies and Processions Act 1958 (Vic) and State laws of riot.

CONTENTS