A criminal action is different from a civil action in two important ways:
Firstly, it is an action brought by the State against an individual; and
Secondly, it does not seek full compensation for a person’s misconduct but rather punishment, by imprisonment or some other penalty. A person whom the State brings a criminal action against is called the “accused” (in the Supreme Court) or the “defendant” (in the Magistrates Court).
When a person is convicted of a serious offences in the Magistrates Court or the Supreme Court, the court is required to impose a compensation levy under the Victims of Crime Compensation Act 1994.
The start of a criminal action
A criminal action begins with the police charging a person with an offence. Offences are contained within Acts of Parliament and can be divided into two general categories:
simple or “summary” offences; and
crimes or “indictable” offences.
Indictable offences are more serious than summary offences and are generally dealt with in the Supreme Court.
All offences, with only rare exceptions, are officially recorded on a piece of paper called a “complaint”. This document is drawn up by the police and contains:
the accused’s name and address;
the name of the offence they are charged under; and
a brief summary of the facts which the police think make the accused guilty of that offence.
Once a person has been charged with an offence the law requires that the police bring them before a Magistrate as soon as is reasonably possible. At this first appearance the accused has a right to have his/her matter adjourned to another date in order to decide whether he/she will plead guilty or not guilty. Alternatively, they can plead to the charge on their first appearance.
Once the accused has been remanded to a future date, or has pleaded not guilty or guilty to the charge, the Magistrate will either remand the accused in custody (gaol) or on bail.
“Bail” is an order of the court, or in some circumstances, of an authorised police officer, which allows the accused to remain out of custody until they are required to return to court in relation to the charges on which they are accused. Bail orders will detail the date that the accused must appear in court and may include conditions which the accused must comply with and which, if he/she does not, may result in further action being brought against the accused.
An accused person may be granted bail on their first appearance. If an accused is refused bail and is remanded in custody, he/she may apply to the Supreme Court to overturn the decision of the Magistrate and to grant bail. If these applications are refused they will be required to remain in custody until the next court appearance.
Link to Bail Act
Magistrates Court or Supreme Court?
What happens after the accused has pleaded and has been either granted or refused bail depends on the seriousness of the offence.
In the case of a summary offence, if the accused has pleaded guilty the accused may be sentenced immediately or the Magistrate may adjourn the matter to another date for sentence. If the accused has pleaded not guilty then the Magistrate may adjourn the matter to another date for a “contest mention”.
A contest mention is a procedure in which the Magistrate has evidence put before him/her so that:
there is a better understanding of the relevant issues; and
the accused can be given an idea of what sort of sentence is likely if he/she is found guilty.
For further information on criminal cases in the Magistrates Court go the Legal Aid Commission Facts Sheet
In the case of a crime or indictable offence, the Magistrate will need to make an order for “committal” to the Supreme Court. This order means that from that point on the case will be heard in the Supreme Court.
If the accused has pleaded guilty in the Magistrates Court then he/she will be committed to the Supreme Court for sentence.
If the accused has pleaded not guilty in the Magistrates Court then the Magistrate may order that a “committal proceeding” commence prior to moving the case to the Supreme Court. At this proceeding the witnesses for each side may be examined and cross-examined and the strength of the State’s (or Crown’s) case against the accused will be assessed.
Appearance in the Supreme Court
The first date that an accused person actually appears in the Supreme Court, unless they have applied for bail there, will almost certainly be on a “remand day”.
This is a day, usually at the beginning of a period set by the court to hear criminal matters, when the Crown will mention a lot of matters to the Judge and make suggestions as to when they should be heard for trial or sentence; or the Crown may ask for a matter to be remanded off to another day when they will be more likely to know when they will be ready for trial or sentence.
When the Crown is finally ready to proceed, the accused will be brought before the court and their matter announced. The accused will be asked to plead to the charges read out from a document called an “indictment”. An indictment is a piece of paper detailing the charges against the accused and is much like a complaint.
The only exception to this is when the accused has chosen to have their summary offence heard in the Supreme Court, in which case the charges will be read from the original complaint.
The effect is the same regardless of whether the charges are contained in a complaint or an indictment.
The accused may change their plea at any point in the proceedings. If the accused pleads “guilty” then he/she can either be sentenced then and there or be remanded off for sentence on another day. If the accused pleads “not guilty” then the Crown will begin preparing a case for trial.
When the trial begins
Once an accused person has pleaded not guilty a jury will be empanelled to try the case. The accused has a right to “challenge” six of the jurors and have them removed from the jury.
Once the jury has been empanelled and finally sworn in to try the accused person’s case, the representative of the State, referred to as the “prosecutor” or the “Crown” will make a short statement to the jury about their version of events in regards to the accused person’s case. The accused or his/her lawyer will then be entitled to make a short statement, with certain restrictions, about their version.
The Crown will then call witnesses to testify against the accused whom they may then cross-examine when the Crown has finished with them. The Crown may also produce physical or written evidence to support their case against the accused. Once all the Crown’s witnesses and other evidence have been finished with, their case is said to be closed.
The accused may now give evidence personally, or call their own witnesses, or both. Both the accused and their witnesses may be cross-examined by the Crown. When the accused has no more witnesses or evidence left to produce, the case is then closed.
The Crown and the accused, or their legal representative, will then both address the jury to sum up the case as they see it and convince them of the truth of their respective cases. The Judge will then give some directions about the law to the jury and they will then be sent out to deliberate over whether the accused is guilty or not guilty.
When the jurors have finished deliberating they will alert the Judge’s Associate and the court will be reconvened. The Judge’s Associate will then ask them for their verdict and the fore-person will give it.
If the verdict is one of guilty then the Judge may proceed to sentence then and there or may hold the accused (now called the “prisoner”) to a later date for sentencing. If the verdict is one of not guilty, the accused is free to go.
Commonly Asked Questions
Can an accused change his/her plea at any time?
Yes. An accused person can change his/her plea from guilty to not guilty, or vice versa, at any time during the proceedings, including during the middle of a trial.
Must an accused person give or call additional evidence in a case against them?
No. An accused person is presumed to be innocent until proven guilty and is therefore under no obligation to give or call additional evidence in order to prove his/her innocence. It is up to the Crown to prove that the accused has committed the offences alleged and if the Crown does not prove this to the satisfaction of a jury, then the accused will be discharged.
Must an accused person have a lawyer to represent them?
No. If an accused does not wish to have a lawyer represent them in court they may represent themselves. If they do wish to have a lawyer but cannot afford one they can apply to the Legal Aid Commission for legal representation. An accused may not ask someone who is not a lawyer to represent them: the accused must either do it personally or obtain the services of a lawyer.
Can an accused appeal against the decision of a lower court?
Yes. Decisions in the Magistrate’s Court may be appealed to the Supreme Court. Decisions of a single Judge of the Supreme Court may be appealed to the Court of Criminal Appeal, which is made up of three Judges. Decisions of the Court of Criminal Appeal may be appealed to the High Court of Australia. No appeals are possible from the High Court.
Are all serious/indictable offences heard in the Supreme Court?
As a rule, yes. However, for certain offences which are technically indictable but are not in reality very serious, the courts provide that the accused may be dealt with in the Magistrates Court. An example of this is stealing something valued at under $5,000. Where the offence is the same, i.e. stealing, but is more serious in nature, valued at between $5,000 and $20,000, the accused has a choice whether to defend the charge in the Magistrates Court or in the Supreme Court.
What if I am convicted and the Judge orders that I pay a victims of crime compensation levy?
You may be ordered to pay a compensation levy on conviction. For further information please click here