Being charged with a criminal offence can be a confronting experience, particularly if you have never been in trouble with the police before.
You may be worried about going to court, whether you will receive a criminal conviction, how the charge might affect your employment, or even whether you could be sent to prison.
The important thing to understand is that being charged with an offence does not mean you have been found guilty. The prosecution must still prove its case, unless you enter a plea of guilty.
There are also important decisions to make before your first court appearance. Obtaining legal advice early can make a considerable difference to how your matter is handled.
1. What should you do if the police want to interview you?
If police wish to question you about an alleged offence, you should consider obtaining legal advice before agreeing to an interview.
In NSW, a person suspected of committing an offence generally has a right to silence. There are exceptions, including circumstances where the law requires particular information to be provided to police.
You are not ordinarily required to answer questions about an alleged criminal offence simply because a police officer asks them.
However, there can be consequences associated with remaining silent in certain circumstances, particularly where a special caution is lawfully given.
What you say during a police interview may subsequently be used as evidence against you.
My advice is to obtain legal advice before deciding whether to participate in a police interview. The appropriate course will depend on the particular circumstances.
2. What is a Court Attendance Notice?
If you have been charged with a criminal offence, you will ordinarily receive a Court Attendance Notice (CAN).
This document identifies the charge and tells you when and where you are required to attend court.
It is important to read it carefully.
You should check:
- The precise offence with which you have been charged.
- The date, time and location of your court appearance.
- Whether you have been granted bail and whether any conditions apply.
- Whether you have also been served with an Apprehended Violence Order (AVO) application or other documents.
Do not simply ignore the notice because you believe the charge is unjustified or that the matter will eventually be withdrawn.
Failing to attend court when required can have serious consequences, including the possibility of a warrant being issued for your arrest.
3. What happens at your first court appearance?
For many criminal matters, the first appearance will be in the NSW Local Court.
The Court will need to establish how you intend to respond to the charge and what should happen next.
Depending on the nature of the matter, you may be asked whether you intend to plead guilty or not guilty.
Some matters can be finalised relatively quickly. Others require further court appearances, disclosure of evidence, negotiations or a defended hearing.
If you have not obtained legal advice or need time to consider the evidence, it may be possible to request an adjournment.
An adjournment is not automatic, so you should not assume that the Court will simply postpone the matter because you ask.
If possible, speak to a solicitor before your first appearance.
4. Should you plead guilty or not guilty?
This is one of the most important decisions in any criminal proceeding.
Pleading guilty means formally admitting the offence. The matter will then proceed towards sentencing, although the facts alleged by police may still require consideration or negotiation.
Pleading not guilty means the prosecution must prove the charge.
Depending on the offence and the court procedure involved, the prosecution may be required to provide a brief of evidence containing material such as witness statements, photographs, police recordings, forensic results and other relevant documents.
A solicitor can examine that material and advise whether the evidence is sufficient to establish the offence.
There may also be grounds for challenging the admissibility or reliability of particular evidence.
Sometimes representations can be made to the prosecution seeking withdrawal of a charge, amendment of the allegations or resolution of the matter on an agreed basis.
It is important not to enter a guilty plea simply because you want to get the matter over with.
Equally, a not guilty plea should be based on an informed understanding of the charge, the evidence and your available options.
5. What if you are refused bail?
If police refuse bail, you may be brought before a court for a bail determination.
The Court considers the applicable provisions of the Bail Act 2013 (NSW), including whether particular risks can be adequately addressed by bail conditions.
For certain serious offences, additional requirements apply, including the need to show cause why detention is not justified.
Relevant matters may include your residential circumstances, employment, family responsibilities, previous history and the nature of the allegations.
A solicitor can prepare and present a bail application and, where appropriate, propose conditions addressing the concerns raised by the prosecution.
If you are already on bail, it is essential to comply with every condition. A breach may result in further legal difficulties.
6. What happens if you plead not guilty?
If your matter proceeds to a defended hearing, the prosecution must prove the elements of the offence beyond reasonable doubt.
The prosecution will ordinarily call its witnesses, who may be cross-examined by the defence.
The defence may challenge the prosecution evidence and, where appropriate, call witnesses or present other evidence.
An accused person is not generally required to give evidence in their own defence.
After considering the evidence and submissions, the Judge determines whether the prosecution has proved the charge.
If the prosecution fails to establish guilt beyond reasonable doubt, the defendant should be found not guilty.
Some serious criminal charges proceed through a different process and may ultimately be tried in the District or Supreme Court.
7. What happens if you plead guilty?
A guilty plea does not mean that the Court will automatically impose the most severe available penalty.
The Court considers the offence, your personal circumstances, previous criminal history and any relevant material presented on your behalf.
Depending on the matter, useful sentencing material may include:
- Character references from people who know you well.
- Evidence of employment and family responsibilities.
- Relevant medical or psychological reports.
- Evidence of counselling, treatment or rehabilitation.
- Documents demonstrating steps taken to address the circumstances contributing to the offending.
In appropriate cases, the Court may impose a fine, a Conditional Release Order, a Community Correction Order or another available sentence.
For some offences and offenders, the Court may deal with the matter without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Imprisonment is also an available sentencing option for sufficiently serious matters.
The appropriate outcome depends upon the offence and the individual circumstances.
An early guilty plea may be taken into account in sentencing. Different statutory rules apply to certain indictable proceedings, so the timing and consequences of a plea should be discussed with your solicitor.
8. Can you avoid a criminal conviction?
In some circumstances, yes.
A criminal conviction can affect employment, professional registration, travel and other aspects of a person’s life.
However, the Court does not grant a non-conviction order simply because a conviction would cause inconvenience or embarrassment.
The Court must consider the applicable legislation, the seriousness of the offence, the offender’s previous record and the other relevant circumstances.
Even where an offence is proved, a solicitor can advise whether there is a realistic basis for seeking an outcome without conviction.
No particular sentencing outcome can be guaranteed.
9. What should you bring to your first appointment with a criminal lawyer?
If you have been charged, it is useful to bring your Court Attendance Notice and any other documents provided by police.
You should also bring any bail paperwork, AVO documents, relevant correspondence and information about possible witnesses or recordings.
Be prepared to explain what happened, what you said to police and whether you have previously been before a court.
It is important to give your solicitor a complete and accurate account, including matters you may consider unfavourable to your case.
Your solicitor needs that information to assess the evidence, identify the issues and advise you properly.
10. Criminal Law Representation in Tweed Heads
I have practised law since 1986 and have extensive experience representing clients in criminal proceedings.
My practice includes assault and domestic violence charges, drug offences, dishonesty offences, police interviews, bail applications, guilty pleas, defended hearings and appeals.
I regularly deal with matters before the NSW Local Court, including courts in Tweed Heads and throughout the Northern Rivers.
When you engage my practice, you deal directly with me. I provide advice about your options, prepare your case and appear in court where representation is required.
If you have been charged with an offence or are facing a police interview, it is sensible to obtain advice at an early stage.
For further information about my services, visit the Criminal Lawyers Tweed Heads page.
Carl Edwards Solicitor — Tweed Heads
Telephone: 0421 196 608
This article provides general information about criminal proceedings in New South Wales. It is not a substitute for legal advice about your particular circumstances.