This is a helpful guide on your options in court and how to represent yourself if you’re not eligible for legal aid while also unable to afford a private lawyer.
Understandably, some people are unable to afford private legal representation, and some of those same people are refused legal aid. This is where the justice system can be seen to fail.
Most criminal defence lawyers will provide a free first consultation, and it’s advisable to take advantage of that to get some detailed advice and guidance from an expert.
If you wish to book a free first consultation with Criminal Defence Lawyers Australia, you can call us 24/7 on (02) 8606 2218.
Below is an outline of how to represent yourself, and your options in court.
Feeling Nervous or Scared?
It’s perfectly normal to be nervous and scared when going to court. Understanding what to expect will help reduce that fear.
A criminal conviction from a criminal offence can have long lasting consequences on a job, travel plans and any dependants who rely on your income.
A conviction from a traffic offence can also have long lasting consequences with a disqualification of your driver licence- which can impact on your job and loved ones who rely on you.
Judges and Magistrates understand that you will be nervous in court representing yourself. While they are not allowed to provide you legal advice, they will allow you to represent yourself- in which case they can assist you to an extent.
A Judge or Magistrate can impose a criminal conviction for any criminal or traffic offence, including, drink driving, drug driving, drug supply, drug possession, assault, fraud, sexual offences, AVO breaches, firearms and weapons offences.
Be sure to bring with you a pen and paper to write on in court.
Listen carefully to what is being said and take notes of any orders that the Magistrate or Judge makes. It’s easy to miss these orders if you’re not paying attention.
Being Familiar with Your Charge Papers
When charged (before your first court date) police will normally give you charge papers which include a ‘Court Attendance Notice” and ‘Police Facts Sheet’.
If you don’t receive the charge papers for your case before your first court date, you can either directly ask police for a copy from the police station or you can request a copy from the prosecutor in court. Alternatively, you may contact our office who can directly contact police to obtain it.
The “Court Attendance Notice”
This is a document that shows which court, time and date you’re required to attend. It also tells you the charge(s) and section(s) of the law that you’re facing. It also gives a brief outline of the nature of the allegations.
The charge(s) are allegations, and you’re presumed innocent unless you either plead guilty or the court finds you guilty later. This document will also have the name of the police officers who arrested you and his/her police station.
It’s important to understand the charge and section expressed in the ‘Court Attendance Notice’ because from there you can work out what the maximum penalty is for the charge your faced with.
It’s important to understand that the maximum penalty for any criminal or traffic offence is rarely given by Courts and is usually reserved only to the most severe cases. The maximum penalty is critical because it’s one of the many factors the Magistrate or Judge will consider during the court process.
The “Police Facts Sheet”
This is a document drafted by police. It’s a police version of how they think you committed the alleged offence and is an attempt by police to summarise the alleged offence.
It is a one-sided version from police based on their investigations and is not always accurate.
The ‘police facts sheet’ is what the police will try to hand up to the Magistrate in court if you plead guilty. The Magistrate will then sentence you based on what is said in the police facts sheet. You must ensure you carefully read it before allowing it to be handed up in case it isn’t accurate.
If the ‘police facts sheet’ isn’t accurate it may make you look very bad which will likely result in a heavier penalty and a worse outcome.
If the ‘police facts sheet’ is inaccurate then, when pleading guilty in court, you should object to it being handed to the Magistrate. You should then ask the court for an adjournment for time to negotiate the police facts sheet to ensure it is accurate- this can significantly improve your outcome with a more lenient penalty.
If you plead not guilty in court, then the ‘police facts sheet’ has little to no value as it’s only the police allegation- the Magistrate or Judge won’t be reading it. There are always two sides to a story. Here, the facts sheet only becomes relevant if you were to make a bail application or seek a change of your bail conditions in court after pleading not guilty.
Bring a copy of your ‘court attendance notice’ and ‘police facts sheet’ with you to court.
What to Expect on the First Court Date
Be sure to attend court on the allocated date, time and place outlined in the ‘court attendance notice’ paper.
Get to the court house by 9am with your pen and paper ready to take notes. Pay close attention and stay focused.
What Should I Wear in Court?
Ideally you should wear either formal or smart casual clothes to court. Mini-skirts, hats, sunglasses, singlets and shorts should be avoided. Wearing a tie and suit isn’t necessary but recommended if you have it.
As you enter the court complex building, you will first be required to go through security. Place all your metal items, mobile phone, laptop, any electronic devices onto a tray provided which will go through the scan machine while you walk through the metal detector.
There will be a court security officer who will assist you.
After you pass security inside the court building, you will find there are a number of court rooms inside. There will be either a Registrar or a Magistrate inside each court room where matters will be heard in. You will need to find out which court room your case is going to be heard in.
There will be a notice board inside the main foyer of the court building which lists the allocated court room for each name of cases. You will need to find your name and allocate court.
Once you have found your name and allocated court room for your case, you must then attend the registration desk in the foyer area of the court building to register yourself before you enter your allocated court room. At the registration desk, the court staff will ask if you’re self-representing, and whether you’re pleading guilty or not guilty. Based on this, they will confirm which court room you need to go to.
Entering Your Allocated Court Room
After you have registered at court, you need to go to your allocated court room.
Before entering your allocated court room, it’s important to know a few of the below basic rules, procedures & practices so that you don’t get on the wrong side of the Magistrate or Judge in court:
- Either turn your mobile phone off or on silent.
- Do not use your mobile phone in the court room.
- As you open the court room door, be sure to bow forward towards the Magistrate or Judge. The Magistrate or Judge will be seated at the front of the court facing towards you. Then take a seat in the back of the court gallery.
- Do not talk to others while inside the court room except if being spoken to by either the Magistrate or a court staff inside the court room.
- Inside the court room, there will be a bar table located close to and in-front of where the Magistrate sits. The prosecutor and lawyers sit facing the Magistrate at this bar table. You are not to sit at this bar table unless invited to by the Magistrate. In fact, you must wait in your seat in the back gallery of the court room until your name is called.
- Whenever addressing the Magistrate always refer to him or her as “Your Honour”.
- When inside the court room, you must wait until your name is called. Once your name is called, you will need to stand up and approach the side of the bar table where there will be a microphone. That microphone won’t amplify your voice, it only records it. The Magistrate will then ask you to confirm your full name. The charge will be then be read out to you by the Magistrate to confirm if you understand the charge against you. The Magistrate will then ask if you wish to plead guilty or not guilty to the charge/allegations. You will then be required to answer.
- When facing the Magistrate after your name gets called, you must remember to only answer the Magistrate’s questions. This is not an invitation for you to start discussing your case. There may be more questions asked of you but remember to only answer the questions in the shortest possible way.
- If you wish to adjourn your case for more time to prepare or seek legal advice, then ask the Magistrate for an adjournment with the reason(s) why.
- Procedure if pleading guilty: If you plead guilty to the charge, the prosecutor seated on one side of the bar table, will try to hand up a copy of your police facts sheet and any criminal or traffic record to the Magistrate. Make sure you have read the police fact sheet before it gets handed to the Magistrate. If it’s inaccurate then object to it being handed up, let the Magistrate know that you don’t agree to everything said in that police facts sheet. You may need an adjournment try to add, delete or otherwise change some words or sentences in the police facts sheet by negotiating with police.
- If after pleading guilty, you agree with the police facts sheet, then upon it being handed up, the Magistrate will read it. After considering the police facts sheet and any previous traffic or criminal record, the Magistrate will ask you if you would like to say anything. This is your opportunity to hand up any good character reference letters, talk and outline an explanation, not a justification for your offending behaviour, express any remorse, insight and your current circumstances -job, family dependants, expenses etc (below is a detailed outline of how to best prepare for a sentence when representing yourself in court). After listening to you, the Magistrate will then decide on a penalty to impose.
- Before the Magistrate imposes a penalty on you, he/she will require you to stand. The Magistrate will then say a few words to you about your wrongdoing to denounce what you did. You are not expected to reply or talk when this is being done. Normally, a Magistrate will not ask you further questions at this stage.
- You may only leave the court room after the Magistrate has completed the sentence process. When leaving the court room, you must turn to face the Magistrate and bow once again before opening the door to exit the room.
- If you received an order requiring you to enter into a bond or supervision, you will need to attend the registry afterwards to confirm your name and address. If you have been given a good behaviour bond or supervision condition, you will be required to contact a community corrections officer- the court registry staff will be able to provide you with those contact details.
- If you’re not happy with the sentence and/or conviction you received, you can appeal the decision within 28 days from the date of the sentence. You can file that appeal at the court registry.
- Procedure if pleading not guilty: As to your options in court, see further below. However, if you plead not guilty, then your case will not be dealt with on that first court day. Generally, it will be adjourned for up to 8 weeks to allow the police to serve you a copy of the brief of evidence. You are entitled to any evidence the police wish to rely on against you before your case goes to a hearing. You may plead guilty at any stage of your case.
- On the first court date, if you plead not guilty, you must not start talking about your case with the Magistrate. Nor should you discuss whether the police have enough evidence. The Magistrate will not be interested in this on the first court date. listen to the orders made by the Magistrate carefully and take notes of it on your paper.
- After pleading not guilty, the Magistrate will make an order for police to serve you with the police evidence. The Magistrate will also make an order as to the second court date you are required to attend on. Take note of the order for the date that police are required to serve their evidence on you by and on your next court date. Be sure to confirm your address with the prosecutor to ensure that they end up serving the evidence to the correct location.
- On the second court date, provided the police have served you with all of their evidence, your case will then be adjourned for an allocated hearing date which can be 1 to 3 months away (sometimes more, depending on how busy the court’s diary is). You will be required to attend court on the hearing date.
- If your charge is a domestic violence related charge, then upon entering a plea of not guilty on the first court date, the Magistrate will usually adjourn your case to a second court for a defended hearing. Otherwise, the second court date is usually a ‘mention’ date which means a short day in court to provide the court with an update as to what’s happening i.e. confirming to plead not guilty, guilty, and whether police have complied with court orders etc.
- If police have not served you with all their evidence in accordance with the court orders, then your case could get adjourned further to allow police to serve the rest of it. Sometimes, where police haven’t served all their evidence on time, the Magistrate may, instead, adjourn your case for a hearing but not allow police to use that portion of the police evidence that wasn’t served on you in time in accordance with the court orders.
- On the hearing date (which may be either the second or third court date), you will be given an opportunity to cross examine any police witnesses or civilian witnesses in the witness box to test the truth or accuracy of the police case. You may then decide whether you wish to give evidence under oath in the witness box (you have a right to remain silent and choose not to do this as a right). If you wish to give evidence, then you will be required to enter the witness box in the court room near the Magistrate. The prosecutor will then have an opportunity to cross examine you to test your evidence. Making the call to give evidence or not in court as an accused person can be a difficult decision which depends on the case and evidence. It’s strongly recommended to get some guidance and advice beforehand from an experienced criminal or traffic lawyer on this issue.
- After everyone has given their evidence in court on the day of the defended hearing, the Magistrate will then decide whether you’re guilty or not guilty as to the charge(s).
- If you’re found not guilty, the Magistrate will dismiss the charges and your case concludes- you can leave the court room and sometimes even ask for costs if there is a basis for it.
- If you’re found guilty, then the Magistrate can proceed to sentence you straight away- your matter will conclude after you’re sentenced. If you would like more time to prepare for sentencing (by getting good character letters, psychologist report etc) then you may ask the Magistrate for an adjournment to prepare your sentence. If you’re not happy with the Magistrate’s sentence, you may appeal the decision within 28 days.
- For guidance, for criminal cases, see our page on good character reference examples.
- For traffic cases, see our page on good character reference examples for traffic offences.
Your Options in Court
Charged with a criminal or traffic offence is very stressful. It’s more difficult when you don’t know your options at court.
Our criminal defence lawyers regularly appear in all courts specialising in criminal and traffic cases with a combined experience of over 50 years.
The below are your options in court when faced with a criminal or traffic charge. The below also outlines how to maximise your chances at getting the best possible result in court- whether it’s a section 10 dismissal, avoiding a sentence of imprisonment or strengthening your best defence to get a not guilty verdict.
Pleading Not Guilty
When in court, if you choose to enter a plea of not guilty to your criminal or traffic charge(s), the Magistrate will adjourn your case for about 8 weeks to a second court date. The police will be ordered to serve you with a copy of the police evidence by 2-3 weeks before your second court date- be sure to confirm your postal address with the prosecutor in court at this time so that the police end up serving the police evidence at the correct location to avoid delays.
Upon receiving the police brief of evidence (which encompasses any evidence the police wish to rely on to prove your guilt), you will be required to return to court on the second court date to update the Magistrate as to whether or not you ended up receiving the complete police evidence and whether or not you continue to maintain your plea of not guilty after having read the evidence.
If you didn’t end up receiving the entire police evidence by the second court date, the Magistrate will normally adjourn your case for a further 4-6 weeks to police to comply with serving the entire evidence they wish to rely on.
Upon having received the entire police evidence and if you maintain your plea of not guilty on the second court date, the Magistrate will then adjourn your case to a third court date for a defended hearing (the final court date).
You will be required to attend court on the final hearing date of your case when the police have the duty (not you) to prove each element that makes up the charge(s) in order for the Court to be able to find you guilty.
The police have the duty to prove each of the elements of a charge ‘beyond reasonable doubt’- which is a high standard of proof. This is what makes it more difficult for police to prove the alleged offences in court. This means that if police are unable to prove each of the elements that make up the charge against you, you will be found not guilty even if you don’t end up producing any evidence to prove your innocence in court.
You, as an accused person, therefore have an advantage of having the benefit of the doubt.
You’re presumed innocent unless the prosecution can prove you’re guilty at this high standard of proof.
Every offence consists of 2 elements required to be proven in court which consists of both the ‘actus reus’ and ‘mens rea’.
Your charge will be dismissed if police are unable to prove each of the following 2 elements of your traffic or criminal charge:
- Actus Reus: This is the action(s) taken to perform the criminal or traffic offence. It requires police to prove that the accused performed the actions amounting to the offence, or the actions caused the offence to occur (depends on the specific charge).
- Mens Rea: This is the intention behind committing the ‘actus reus’ amounting to the criminal or traffic offence. Depending on the charge, the police will be required to prove either one of the following:
- Intention: That the accused intended to perform the ‘actus reus’ amounting to the offence; or
- Recklessness: That the accused was ‘reckless’ as to the consequence of committing the ‘actus reus’. ‘Reckless’ is when you foresee the possibility of a harmful consequence of your actions but continue with your actions anyway.
- Negligence: That the accused was ‘negligent’. Negligent here is if the court can conclude that an ordinary reasonable person would have known or foreseen that harm was likely to occur from committing the ‘actus reus’.
- Strict liability: Some offences don’t have a requirement for police to prove a ‘mens rea’. However, for these kinds of offences, such as traffic offences of minor traffic offences, an accused will be not guilty if successful in arguing the defence that he/she made a mistake but honestly and reasonably held a belief (which if true would not constitute an offence). This is the defence of honest and reasonable mistake of fact.
- Absolute liability: Some offences don’t have a requirement for police to prove a ‘mens rea’ while the defence of honest and reasonable mistake of fact will also not apply.
Being able to prove that the accused was ‘reckless’ in performing the actions that amount to the offence is easier than trying to prove the accused ‘intended’ to perform those actions under the law. Most charges require the police to prove either one (intention or reckless) within the one charge.
To prove the accused was ‘reckless’ usually requires police to prove beyond reasonable doubt that at the time of the ‘actus reus’ the accused foresaw the possibility of the outcome that amounts to the criminal or traffic offence but performed those actions anyway.
This ‘reckless’ element of a charge can also be inferred from the surrounding established evidence.
Some charges will require the police to prove that the accused either intended to commit the ‘actus reus’ or was reckless as to the harmful consequences of committing the ‘actus reus’.
Some charges won’t have a ‘mens rea’ element to it. An experienced criminal or traffic lawyers can guide you on this by looking at the ‘court attendance notice’ charge paper.
Defences to Criminal and Traffic Offences
Being able to discover possible defences to a case is very important. These discoveries often arise from carefully looking into the evidence of a case. Each case will depend on the specific charge and the evidence.
You will be found not guilty if any of the following defences apply to you:
Mental illness Defence: You will be not guilty if at the time of the committing the offence, you were suffering a mental illness. Mental illness here is where there was a ‘defect of reason’ from a ‘disease of the mind’. This is where you didn’t appreciate the nature and quality of your offending conduct, or you didn’t know that it was wrong at the time.
Self Defence: You will be not guilty if you committed the alleged offending conduct in circumstances you believed it was necessary to protect yourself (or someone else) in the circumstances you perceived it, and where your actions were a reasonable response in those circumstances perceived by you at the time.
Causation: Where a charge requires police to prove a consequence requirement where causation is essential to prove in a case, the prosecution must prove that the accused actions caused the result amounting to the offence. You will be not guilty where causation between your actions and the consequence constituting the offence cannot be proven.
Involuntary Actions/Automatism: spasms, sleep walking, epileptic fits, unconscious action, reflex action. Here if the accused shows some evidence to suggest his/her actions were involuntary, the prosecution will then be required to prove beyond reasonable doubt that the actions of the accused were voluntary. Expert evidence is often then required.
Duress: You will be not guilty if you performed the offending conduct due to threats of death or really serious injury in circumstances where those threats were of such nature that a person of ordinary firmness and strength of will (of the same gender and maturity) would have complied.
Necessity: You will be not guilty if you committed the offence in the following circumstances:
- You committed the offence to avoid consequences that would have inflicted irreparable evil on you or on others who you were bound to protect; and
- You honestly believed on reasonable grounds that you were placed in such a situation of imminent peril; and
- Your actions constituting the offence was not out of proportion to the peril that you were avoiding.
Mistaken Identity: You will be not guilty if the prosecution is unable to prove beyond reasonable doubt that the person who allegedly committing the offence was you.
It’s important to get the right advice before pleading guilty in court to a traffic or criminal charge. This is because you may be able to negotiate with the police beforehand, which can result in a much better outcome.
If you decide to plead guilty, you need to ensure that all the things that should get done end up getting done for your case.
Your case should be prepared in such a way that will maximise your chances at getting the best possible result in court.
For over 20 years, our team of leading criminal defence lawyers hold a proven track record of getting exceptional results countless times in and out of court. This includes section 10 dismissals (non-conviction) and avoiding full time jail for the very serious and complex cases.
Maximising your chances at getting the best possible result in court is often achieved by thoroughly preparing a case in the early stages. It also includes extensively negotiating with police to get charges dropped or downgraded at an early stage.
Our specialist lawyers have significant experience and expertise in developing the best strategy on how to best prepare a case.
See the following helpful guide on how to best prepare your case if pleading guilty.
25% Discount on Penalty
Pleading guilty to a traffic or criminal charge at the earliest possible opportunity will result in you receiving an automatic 25% discount on the penalty by the Judge or Magistrate. This will result in a more lenient outcome. It will increase your chances at avoiding a criminal record (by getting a section 10) and in other more serious cases- avoid jail.
The later the plea of guilty is entered in your case, the smaller that discount gets. This is why it’s critical to get guidance and advice from an experienced lawyer as early as possible before your next court date.
Co-operation with Law Enforcement Agencies
This is often a controversial issue.
Your penalty can be reduced by up to 60% if:
- You provided significant assistance to police; and
- The assistance you provided helped police to successfully arrest and charge someone; and
- You’ve agreed to give future assistance to police by agreeing to attend court in the future to give evidence if required against someone.
A discount of this extent can drastically increase the chances of not going to jail for s serious crime, or in other cases it can significantly improve your chances at getting a non-conviction (s10 dismissal or conditional release order).
Properly written and compelling good character reference letters can significantly improve your chances at getting a better outcome and more lenient penalty from the Judge or Magistrate who reads it- it gives the Judge or Magistrate insight about you.
A character reference letter can come from family, friends, colleagues, and your employer. It is also a good idea to draft an apology letter from yourself expressing the key points.
Each character letter should discuss the key issues that a Judge or Magistrate will be looking at when considering whether to give a harsh or lenient penalty. These things include, your remorse, contrition, insight and shame for committing the offence. It should also express your otherwise good character with an example to demonstrate this.
Every letter should be looked over and reviewed by an experience lawyer before handing it to a Judge or Magistrate in court.
For guidance on drafting a good character letter for specific offences, see our following pages:
- Click here for Character reference sample for assault offences.
- Click here for Character reference sample for drug offences.
- Click here for Character reference sample for traffic offences.
- Click here for Character reference sample for driving offences.
- Click here for Character reference sample for drink driving offences.
Negotiate the Police Charges to be Dropped
Our team of lawyers have successfully negotiated with police to get criminal and traffic charges dropped countless times for over 20 years.
On other occasions our negotiations have led the police to downgrade more serious charges to a less serious charges which then results in a more lenient outcome in court.
Getting charges dropped or downgraded through negotiations can occur by thoroughly knowing the case, the law, the evidence and the court & police procedures. It involves picking out all the ‘holes’ and inconsistencies in the police evidence and then using that to develop the best way to negotiate.
Negotiate the Police Facts
After you enter a plea of guilty, the prosecutor in court will try to give the Judge or Magistrate a document referred to as ‘the police facts’ sheet.
The Judge or Magistrate will then impose a sentencing penalty on you based on what is written in that document.
The ‘police facts’ sheet is a document initially drafted by police attempting to summarise when, where, why and how you committed the offence so that the Judge or Magistrate can impose an appropriate sentencing penalty on you.
You will more likely receive a heavier penalty if the ‘police facts’ sheet is inaccurate, painting you in a worse light than what really happened.
If you don’t agree with what’s written in the ‘police facts’ sheet, then you should object to it being handed up to the Judge or Magistrate in court.
By negotiating the ‘police facts’ sheet with police, you can change what’s written in this document to more accurately reflect what actually happened so that you are painted in a much better light to the Judge or Magistrate reading it. This can significantly increase your chances at a much more lenient sentencing penalty in court.
The best way to negotiate the ‘police facts’ sheet is by drafting and sending a letter called ‘legal representations’ to the prosecutor. This is the formal way to commence negotiations with police which will require them to respond. In drafting this letter, you should point out all the holes and inconsistencies in the police evidence.
A good psychologist or psychiatrist report can drastically improve your chances at getting a more lenient sentencing penalty in court.
To get the most out of an expert report it should be from a respected psychologist or psychiatrist with experience in court reports.
A psychologist report should address the key points that a Judge will be looking out for to allow him/her to impose a more lenient penalty. These include:
- Whether you are suffering a mental illness/condition. Especially if that condition is connected to why you committed the offence.
- Your insight, remorse and contrition for the offence.
- An explanation (not a justification) for your offending behaviour.
- The report should be expressed in the correct format to include reference to the expert code of conduct and the experts experience and/or qualifications. If this is not included correctly, the Judge or Magistrate can disregard the report.
Types of Penalties the Court Can Give
The type of penalty imposed by a Judge or Magistrate for a criminal or traffic offence will depend on many factors, including how the case was prepared and presented in court.
A Judge or Magistrate can impose any one of the following types of sentencing penalties for a criminal or traffic offence in NSW: