Criminal Law

How Criminal Law Court Cases Work

  • Introduction

    Navigating the criminal law and understanding the Court process can be a daunting experience for persons charged with criminal offences and their families. It is important to familiarise yourself with the basics of criminal law procedure to assist you in understanding what will be expected of you. Misunderstanding important aspects of the Court process can have a detrimental impact on a matter.

  • Charge Process

    Most prosecutions in NSW are instigated by the NSW Police Force who are the law enforcement agency of the state of NSW. The Police have a wide array of powers, most of which are outlined within the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”). One of these is the power of arrest which is outlined in section 99 of LEPRA. If you are arrested by the Police, you should make immediate arrangements to contact a lawyer. Ordinarily, the best advice that any lawyer can give you in this situation is to exercise your right to silence. This will mean that you should decline to answer any of the questions of Police. There will be some exceptions to this rule, but as a rule of thumb, exercise your right to silence!

    When a person is arrested by Police, they will usually be taken back to the local police station and entered into custody. Here, a person will be processed by police and usually a charge sheet with a set of alleged facts will be submitted to the Custody Manager who will read the paperwork and determine whether bail will be granted. If bail is granted, then the arrested person will be released (usually subject to bail conditions) with a future Court date. If a person is refused bail by the Police, they will appear at Court shortly thereafter where a Magistrate will make an independent decision as to whether bail should be granted in the manner.

    People can also be charged with criminal offences without having been arrested. This will likely occur by Police serving a charge sheet and alleged facts upon you which will include a summons to attend Court on a future date.

  • Summary offences are less serious offences and are dealt with in the Local Court of NSW. Summary offences are defined in Section 3 of the Criminal Procedure Act 1986 as being an offence which is not an indictable offence. The most common examples of summary offences are drink driving and minor drug possession offences. Summary offences are dealt with a lot quicker than indictable offences.

    It is important to note that there is a time limitation on when proceedings for summary offences can be instigated by Police. There is a statue of limitations as specified in section 179(1) Criminal Procedure Act 1986 which means that a summary offence must be commenced within 6 months of the date of commission of the offence.

  • Indictable offences are defined as offences that may be prosecuted on an indictment.

    An indictment is a formal document of charges presented by the Prosecution at the start of a Trial. These offences are generally dealt with before the District and Supreme Court of NSW.

    Some examples of indictable offences include assaults, stealing, murder or manslaughter. Less serious examples of indictable offences can be dealt with in the Local Court (such as assaults and stealing offences). These are known as table offences and usually do not result in being dealt with on indictment unless the Department of Public Prosecutions elects on the matter.

  • The Criminal Procedure Act 1986 categorises offences into specific categories, described as Table 1 and Table 2 offences.

    Table 1 offences are usually more serious offences in include Breaking and entering (<$15,000), reckless wounding or drug supply offences (where the amount of drug is not more than the indictable quantity). These offences are able to be dealt with in the Local Court (summarily) unless the Prosecutor or the Defendant elects to have the matter dealt with in a higher court.

    Table 2 offences are usually less serious offences and include assaults, destroying or damaging property or taking/driving a motor vehicle without the consent of the owner. These offences are dealt with summarily unless the Prosecutor elects to have the matter dealt with in a higher court.

  • The final category of offences are those that are not specified within Table 1 or Table 2 and are not summary offences. These are more serious offences and include offences such as murder, manslaughter, supplying commercial or large commercial quantities of drug, robbery, sexual offences and intentionally inflicting grievous bodily harm. These offences must be dealt with in a higher court.