close close-alt checkmark youtube twitter-alt google-plus-alt facebook-alt linkedin-alt checkmark
image_pdfimage_print
Business handshake

Just because police believe you have committed an offence, it doesn’t necessarily mean that you will end up going to a defended hearing (local court) or jury trial (district or supreme court).

Police or, in more serious cases, the DPP l have discretion as to whether a case should go all the way.

There has never been any police or DPP rule that every offence that is charged must be prosecuted to the full extent of the law.

In fact, when the prosecution continues to prosecute a flimsy case, they can be punished with court costs.

There is even a certain amount of discretion when it comes to whether a person should be charged with an offence in the first place.

Police must form a ‘suspicion on reasonable grounds’ that an offence has occurred before the press charges.

If a complaint is made, police will need to decide whether it is credible before they commence a prosecution.

There are certain areas of the law where police will tend to charge a person even if the complaint appears to be lacking in some respects. Two such areas are domestic violence and sexual offences.

After an offence has been charged, the decision as to whether the prosecution will continue all the way to a defended hearing or jury trial will be primarily governed by what is in the ‘public interest’.

Prosecution policy dictates that criminal proceedings should be withdrawn if:

  • They do not have enough evidence that will be admissible in court to establish each element of the offence, or
  • There is otherwise no reasonable chance of success in court, or
  • There is any other reason why the offence should not be prosecuted.

The last category is the broadest, and the Prosecution Guidelines has a list of about 20 discretionary factors that must be considered when the decision is made as to whether or not to continue with a prosecution.

Broadly, these categories look at what kind of law was broken, the history and background of the defendant, and the interests of the community as well as the criminal justice system.

If the law is old, obsolete or the alleged offence was trivial or committed a long time ago, these are all good reasons for the prosecution to drop the charges. Any mitigating or aggravating factors will also be considered.

The prosecution can consider the background of the defendant, including age, maturity, intelligence, physical or mental health or disability. They can also include any previous criminal offences committed by that person.

If there are any alternatives to prosecution available, the prosecution should consider how effective they would be.

For minor offences (called ‘summary offences’), there is generally a statutory limitation of six months for taking action. After this time, you cannot be prosecuted or punished.

For more serious crimes, such as sexual assault and murder, there is no limitation period at all and offences can be charged years or even decades after they were allegedly committed.

The prosecution can drop charges at any time, so don’t think it is too late just because your case has been going for some time and you’ve already been to court for short court dates (called ‘mentions’)

One way to get the charges reduced or dropped is to write to the prosecution and argue that the evidence is not sufficient to prove the charges.

The prosecution can be the police, the DPP (Director of Public Prosecutions), the RMS, your local council or another prosecutor body.

If you can convince the prosecuting body that they won’t be able to prove the elements of the offence, or that they don’t have reasonable prospects of success due to a valid legal defence you may have, and/or that there are discretionary factors in your favour, then as a matter of policy they are required to withdraw the case.

This way, you can get on with your life without having to face the stress, anxiety and expense of a lengthy hearing or trial.

If the decision is made to prosecute anyway, and they lose in court, they may have to pay your legal costs.

If you are facing a criminal or traffic case, and you don’t feel that your lawyer is doing enough to get your case dropped, you may wish to speak with a lawyer who will.

Magistrate

Remember Shane Diehm, the policeman who was facing charges for corruption and drugs?

We published an article about him a while ago, while he was still facing serious charges of lying to the Police Integrity Commission.

The Commission was established in 1996 to detect, investigate and prevent police misconduct.

After extended adjournments and months of the case dragging through the courts, the Presiding Magistrate in Downing Centre Local Court has finally handed down her decision.

Diehm was sentenced to six-month jail after being convicted of lying to the police force watchdog.

This is a significant fall from grace for a police officer who was once one of the most well-respected on the Northern Rivers.

The 49 year old cried when he heard that he was sentenced to a maximum of 12 months in prison, with a minimum of 6 months.

However, Diehm has yet to spend a night in jail – he has appealed the decision and his appeal will be heard in Downing Centre District Court.

In court, Diehm initially denied that he had taken drugs. He later admitted taking drugs but said he had no memory of his friends doing the same.

While acknowledging that he was certainly not the only one taking drugs, he says he cannot remember exactly who else took them

He pleaded not guilty to the charge of knowingly misleading the Police Integrity Commission in relation to the other officers at a party.

The police officers had enjoyed a wild night of partying complete with alcohol and drugs in a Gold Coast hotel room back in 2010.

Police at the party were unaware that they were being recorded, but surveillance cameras were placed in the lounge rooms and kitchens of two hotel rooms.

According to a phone tap, one of the rooms was paid for by Diehm.

Damning evidence from the bugged hotel clearly records men joking and talking about drugs they were about to take.

But this was not the first time Diehm had been caught out on drugs; he had previously been investigated for cocaine use, which you might think should have had repercussions on his career as a police officer.

According to the Police Handbook, police must not use any kind of prohibited drug and police officers may be subject to random, target and mandatory testing.

While breaching the police Code of Behaviour is not an offence, it can still have repercussions for police who are found to have contravened.

According to the NSW Police Force Drug and Alcohol Policy, any police officer who tests positive to any prohibited drug can be dismissed.

Even if an officer is not dismissed, they will be subject to unscheduled testing for the next five years as well as mandatory participating in counseling and/or rehabilitation.

This year, Diehm told the court that he was too intoxicated to have a good memory of the weekend and a psychiatrist gave evidence that he was suffering from chronic depression and post-traumatic stress caused by his work as a police officer, and that he often drank large quantities of alcohol until he passed out.

Despite his conditions, The Magistrate had little sympathy for this drug-using policeman.

She treated his selective memory with skepticism and said she believed the weekend to have been very memorable for him.

In sentencing, Her Honour gave him the jail sentence in order to deter other members of the police and politicians – a warning not to lie to watchdogs.

She hopes that the threat of severe penalties will deter any others facing similar investigations from my lying.

Diehm now looks back at regret at the weekend that he says ruined his life.

He left the police force in 2013 and during the hearing in court, admitted that he now has no future career in the police force and that his son wouldn’t talk to him.

Do you think that public figures of authority should be held to higher standards than the rest of us?

The Police Integrity Commission began in 2011, and only now has the matter been decided in court.

And since Diehm has lodged an appeal, we may not be hearing the end of this case for some time.

The case raises an interesting question: should the court have given such as harsh penalty to act as a deterrent? Or was it unfair to send him to prison?

Members of the police force are supposed to be upholders of the law and if even they do not conform, there can be a real lack of public confidence in the justice system.

So should they be held to higher standards than the general citizen?

 

Holding documents

Many people charged with offences who appear at a local court in Sydney, such as the Downing Centre, are not sure what to expect when they appear in court for the first time.

Going to court can be extremely stressful and it is natural to want to have it all dealt with quickly so that you can move on with your life.

Unfortunately our justice system is not known for its speed, and the case may not necessarily be dealt with on the day.

When you first appear before the Local court you essentially have three choices:

  • Plead guilty
  • Plead not guilty
  • Seek an adjournment to get legal advice

If you want to plead guilty, the magistrate will move right on to sentencing, unless the case is so serious that it requires the case to be adjourned for a pre-sentence report or transferred to a higher court such as the District Court.

This means your case will often be settled that day, within a matter of hours.

However, unfortunately, if you want to plead not guilty at the mention, you will have to come back at a later date. Your case cannot be settled on the day.

You should never plead guilty if you are innocent of an offence, no matter how tempted you may be.

Magistrates actually have the authority to reject a guilty plea if they do not believe that it is genuine.

They may treat it as a not guilty plea and you will have to come to court again.

If you are pleading not guilty, the case will normally be adjourned for 6 weeks to give police the opportunity to provide you with any witness statements and other evidence against you.

The matter will then progress towards a defended hearing whereby police will bring along any witnesses, and where you can also bring witnesses and material to support your case.

What do I need to bring to a defended hearing?

If you have legal representation, your lawyer will have advised you about the material that you should bring along. He or she will also have spoken with any witnesses that may support your case, and they will normally also be asked to come along.

It is ultimately the prosecution’s job to prove all ingredients of every offence against you beyond reasonable doubt.

However, you can make their job so much easier if you don’t bring any evidence or witnesses to corroborate your story, including any photos, call records, business records or any physical evidence.

Since the court will be deciding your future, it is in your best interests to provide all the evidence you have that backs up your story.

Even if you are pleading guilty, this doesn’t mean you don’t necessarily have anything to prove.

When it comes to sentencing, there may be matters that you want the magistrate to take into account.

Under the Crimes (Sentencing and Procedure) Act, magistrates have a large amount of discretion and are required to consider a range of personal and factual circumstances surrounding the offence.

If there are extenuating circumstances, or particular considerations that you would like the magistrate to consider when sentencing, you will need to bring documentation.

If, for example, you need your licence in order to get to your job, and without your job you will no longer be eligible for your affordable housing scheme, it is vital that you bring along appropriate documentation, such as letters from your employers or Centrelink.

A magistrate may not necessarily just take your word for it.

You can also bring along any character reference or a letter of apology that you have drafted.

If you do have any questions or uncertainties about court process or any other matter relating to your court case, it may be better to speak to an experienced criminal lawyer.

They will be able to work out exactly you will need to collect and prepare for court in plenty of time for your defended hearing (if you plead not guilty) or sentencing hearing (if you plead guilty).

Experienced lawyers may even be able to get your charges dropped before your case even reaches a defended hearing, ensuring you can put the whole matter behind you quickly, and conviction free.

Many lawyers offer a free first appointment, so you can take advantage of their advice even if you are strapped for cash.

Security check

If you are going to court for the very first time, you may want to read our article on what to bring and how to prepare for your case being heard in a local or district courthouse in Sydney or NSW.

When you get to a busy court such as the Downing Centre, you will see security officers running security checks near the entry to the courthouse.

Security officers have considerable power in courthouses, similar in many ways to the powers of police.

Powers to search

Security officers have the authority to perform searches.

So when you enter the courthouse, you may be asked to submit to a basic scanner search.

This may be either the kind where you walk through an electronic screening device or the passing of a screening device over your outer clothing.

Powers to make an arrest

Security officers also have the power to arrest a person on court premises, even without a warrant.

They may perform an arrest upon a person who is committing an offence, or who the officer believes on reasonable grounds has committed an offence.

They may use as much force as is reasonably necessary to exercise their powers of arrest.

Hindering, delaying or obstructing a security officer is a criminal offence.

Powers to confiscate

Security officers have the power to confiscate anything that they believe on reasonable grounds is a restricted item or an offensive implement.

An offensive implement is a very broad category, which includes anything that could be used to cause injury to a person or intended to injure someone or damage property.

A restrictive item includes weapons, firearms or any kind of knife at all.

This should be obvious, but if you are a person who carries a pocket knife it might be worth double checking you don’t accidently take it to court.

In addition, security officers can confiscate anything that may conceal a restricted item or offensive implement.

Possession of a knife in court premises carries the penalty of imprisonment for up to two years.

When you are in the courtroom, while it is okay to take notes, you can’t film or take photos at all.

NSW law states that this applies to all court premises, which is not confined to the courtroom but includes all areas, including any entrance area, toilet, hall, corridor or even parking area.

Security officers can confiscate any recording device as well as film, tape or any other medium that has been used to unlawfully record inside court premises.

An exception to this is journalists who are using recording devices for a media report.

Any confiscated items must either be returned to you when you leave the courthouse, if they are legal and not needed as evidence.

However, they may be retained and passed-on to police if they are deemed to illegal.

Powers to request identification

Security officers have the power to request identification.

They may ask for your name and address if this is unknown and if they believe on reasonable grounds that you are carrying a restricted item or have committed an offence.

However, this works both ways: security officers must also show you identification before exercising their power – for example, their certificate of identification, name or badge number.

They are mandated to carry identification and produce it on demand.

In fact, if they do not they could be facing a $550 fine.

They must also give you the reason for their exercise of power and warn you that refusing to comply with their directions may be an offence.

In the courtroom

A security officer cannot use the above powers in a room where the court is sitting unless it is an emergency and there is not enough time to get a direction from the proper judicial officer.

Courtrooms

Since jail time must be treated as a last resort, a suspended sentence is one of several sentencing options that are open to judges in the district courts in Sydney.

A suspended sentence is essentially a good behaviour bond, but the consequences for breaching it can be very severe.

Technically an imprisonment sentence is still imposed on you if you are given a suspended sentence, but the actual completion of the sentence in jail is what gets suspended.

A suspended sentence means that you don’t actually go to jail at all.

According to section 12 of the Crimes (Sentencing and Procedure) Act, a person who has been given a suspended sentence must enter into a good behaviour bond.

The good behaviour bond must not be for a longer period of time than the term of the sentence, and the term of the sentence must be two years imprisonment or less.

How does a court decide whether or not to grant a suspended sentence?

The court must first make a decision about the length of the prison sentence, before suspending it.

Their decision on the length should not be influenced by the fact that only sentences of two years or less are liable for suspended sentences.

For example, a person convicted of reckless wounding faces a maximum prison sentence of seven years.

If the judge considers a sentence of four years is appropriate in the circumstances, he or she cannot decrease it to two years just so that the offender can benefit from a suspended sentence.

If however, the individual circumstances of the case mean that the judge finds the person deserving of two years in jail, the judge would be free to consider a suspended sentence.

Factors that a judge must consider are:

  • Whether a suspended sentence would still reflect the seriousness of the offence
  • Whether it would fulfil the purposes of punishment
  • The more lenient an alternative to spending time in jail is, the less likely it is to fulfil the purposes of punishment
  • When a court hands down a sentence, they must explain the reasoning behind their decision.

It is not possible in NSW to suspend just part of a sentence, however this is possible under Commonwealth law.

If a defendant is already doing time for another offence, the court cannot order a suspended sentence.

What happens if I breach a suspended sentence?

During a suspended sentence, all the usual rules of a good behaviour bond apply – which means that you will need to be of good behaviour; in other words, you cannot commit any further criminal offences.

You will normally also come under the supervision of the department of community corrections, formerly known as the probation and parole service.

There may also be extra conditions such as abiding by the directions of a psychologist or psychiatrist, or undertaking a specific rehabilitation program.

Any breach of a suspended sentence is considered to be especially serious.

If the court suspects that you are in breach, you will be called back to court and will need to answer for the breach.

Any failure to appear could result in a warrant being put out for your arrest.

Breaches of a good behaviour bond while serving a suspended sentence mean that by law the court must revoke the good behaviour bond.

There are two exceptions:

  • If the court is convinced that the breach was trivial in nature; or
  • If there are other good reasons why you failed to comply with the bond

Good reasons may include extenuating circumstances surrounding the breach but cannot include subjective or personal matters.

If your suspended sentence order is revoked, it means that your original sentence will still apply.

The court is free to decide that instead of imprisonment, you may serve the sentence by way of an intensive correction order or home detention.

If the court reaches the conclusion that you must be sentenced to imprisonment, it will impose a non-parole period and an additional term.

The non-parole period is the time that you must spend in prison before being eligible for release.

If you are in danger of breaching your suspended sentence, or if you have already breached it, you should contact an experienced criminal lawyer straight away as they may be able to avert the breach or minimise the damage caused.

Downing Centre Local and District Court

At the Downing centre, the local and district courts are located in the same building, but the types of cases and nature of the proceedings will vary.

There can be an overlap between the case-types, as some offences can be heard in either court.

But as a general rule the more serious offences will proceed to the District court while the less serious ones will stay in the Local court.

The Downing centre is a busy court complex and both the Local and District courts are open Monday to Friday.

This is different to many regional areas, where Local courts may hold sittings weekly, and the District courts even less often.

Regardless of the severity of the offence, every case will start in the Local court, even the most serious crimes like murder. The majority of criminal cases will remain in the Local Court until they are finalised.

More serious cases will stay in the Local Court until they reach a committal hearing, which is basically an administrative procedure to decide if the prosecution case is strong enough to progress to a trial in the District or Supreme Court. Whether or not a serious case will progress will depend on whether a reasonable jury could find the accused person guilty.

Does it matter which court hears my case?

Most criminal cases are capable of being decided in either the Local or District Court.

In these cases, it is usually better if your case is heard in a local court, because the maximum penalties are lower than those that can be imposed in the District court.

For example, drug supply of a small quantity has a maximum penalty of two years in prison and/or a $5,000 fine in the Local court. The same offence heard in the District court carries a maximum penalty of 15 years imprisonment and/or a $220,000 fine.

However some offences are more serious, and trials regarding these matters don’t have the option of being heard in the Local court – these are called ‘strictly indictable offences’

To use the same example of drug offences, more serious crimes such as the supply of a commercial quantity or a large commercial quantity are strictly indictable and can only be heard in a higher court (either the District or Supreme court).

But as you can see, having your case held in the Local court holds considerable advantages because you are not liable to the same higher penalties.

Local Court proceedings can also be quicker and cheaper, because you won’t need to go before a jury for a trial which can often last for weeks.

Can I prevent my case from being held in the District court?

If you have been charged with several offences it may be possible to plead guilty to some of the smaller charges in exchange for the more serious ones being dropped.

This means that the smaller ones may be dealt with at a Local Court level and so stay out of the District court.

A good criminal lawyer may also be able to negotiate for your case to stay in the Local Court if you plead guilty to certain charges.

What is the difference between a magistrate and a judge?

Cases heard in the Local court will be decided by a magistrate, and those heard in the District court will be heard by a jury or a judge alone. Both can be people who have held a judicial office in Australia or who have been an Australian lawyer.

According to the law in NSW, to be a magistrate, a person must have been an Australian lawyer for at least five years whereas for a judge this is increased to seven years. Judges and magistrates are both appointed by the Governor.

Stalker

Okay, so you have read our blog on dealing with an AVO but now you are about to go to court to defend the order. Court rules can be confusing or perhaps you are just not sure what will happen.

What can you expect during your AVO court hearing?

Firstly, know that you can’t get this done in just one day. If you are going to court for the first time ever in relation to the AVO, you wish to defend it, your matter won’t be dealt with today. Defending the AVO means that not only will you have to show up for the initial hearing, known as a ‘mention’, but have to come back for a second mention date, called a ‘compliance date’, and then when the hearing properly starts generally on the third court date, called a ‘hearing date’.

On the first court date, your matter will be adjourned for 5 weeks.

The Local Court ‘Practice Note’ says that the court will order both the applicant and the defendant of the AVO to file statements by particular dates.

Normally, the applicant will have to serve his or her statements within 2 weeks of the first ‘mention’ date, and the defendant will be have to file his or her statements 2 weeks thereafter.

The next court date, the ‘compliance date’, will normally be one week thereafter.

On the compliance date, the court will ensure that both parties have complied with the court’s order for service of statements. If they have, the court will then set the matter down for a defended hearing.

It is important that you get the statements right as the other side will be able to rely on the things you say in it.

So it’s quite a lengthy process. Although courts seek to provide quick, cheap justice, things unfortunately often don’t always work out that way. This means that, if you do not have a lawyer, you may spend a few hours sitting in court awaiting your turn.

By the stage you arrive at a defended hearing, you (and your lawyer if you have one), should be fully prepared in terms of being ready to present your case.

In AVO cases, the Magistrate will read your statements which will essentially be the ‘evidence’ in your case. The other side (or their lawyer) will be able to ask you questions.

Similarly, the Magistrate will read the other side’s statements and you (or your lawyer) will be able to ask that person questions.

If you are not, the matter may go ahead anyway or, if you seek an adjournment, you may have to pay the other side’s legal costs that have been caused by the delay.

In any case, if you are served with an AVO or are pursuing one, you really should consider legal representation as the potential consequences of an adverse finding could be very serious, particularly if children are involved.

If you don’t have the financial resources, it is worth seeing if you are eligible to receive Legal Aid or through the Law Society’s ‘pro bono’ scheme.

Often it is much better to let a lawyer who is experienced in AVO cases do the talking in court if you have one.

As surprising as it may sound, defendant after defendant walks into court thinking things will be settled if only they have the chance to ‘explain everything’ to the magistrate.

These people are often disappointed.

If the magistrate wants to hear your voice, they will ask you to speak.

If not, it is probably best to let your legal representative use their training and experience to do this for you. This is why you are paying them, isn’t it?

If you are representing yourself, don’t forget court etiquette – while you won’t be expected you to know all the rules, you should dress conservatively, act humbly and refer to the magistrate as ‘Your Honour’.

The applicant may not appear in the courtroom during proceedings – they may instead be in separate different room, known as a safe room.

When the court makes an order they will be looking at several factors.

If you are representing yourself, keep in mind you will be seeking to convince the magistrate to decide in your favour the following issues:

  • Whether the order could prohibit or restrict access to the defendants residence
  • The consequences on the safety of the protected person and children living at the residence
  • Any hardship that may be caused by either making or not making the order especially to the protected person and any children
  • The accommodation needs of all parties but particularly the protected person and children

The magistrate can also consider all of the evidence that he or she considers relevant and make a decision accordingly.

Although a decision will usually be made that very day, in some cases it is possible for the outcome to be ‘reserved’ and you may have to come back to hear of the courts decision.

What are the possible outcomes?

The AVO could be upheld and this is what is known as a Final AVO (as opposed to an interim or provisional one).

This will normally be where the magistrate finds that on the balance of probabilities the applicant has reasonable grounds to fear, and in fact fears, that the other person will intimidate, stalk, or commit a violent offence against them.

These orders last for twelve months, unless the magistrate decides otherwise.

In the case that the magistrate uses their discretion, they can last for just a few months or even several years. You also have the option to appeal within 28 days.

It is also possible that you can successfully defend the AVO – meaning that the magistrate does not believe that on the balance of probabilities the protected person fears and is reasonable to fear you will physically hurt, distress, upset, annoy, intimidate or stalk.

Although this means that no AVO will apply, the protected person can appeal the decision within 28 days or reapply for an AVO at any time.

If you win, the magistrate can also order the applicant to pay for some or all of your costs!

If you lose, however, you may need to pay some or all of the applicant’s costs.

A magistrate may also refer the applicant to mediation in some circumstances.

Man drinking alcohol

Being drunk or drug-affected can cause you to do things you wouldn’t normally do, so you might be wondering if this has any impact on how the court deals with offences committed while an offender was intoxicated.

If you were intoxicated when you committed an offence, this may be taken into account in some circumstances.

According to the law, intoxication includes not only alcohol but also drugs, or any other substance which can intoxicate.

Intoxication which is not self-induced is generally a defence, and a person who fits into this category will not be held criminally liable for their actions.

However, the use that can be made of intoxication will vary depending on whether or not the alleged offence requires the prosecution to prove a ‘specific intent’.

Specific intent

If you are accused of committing a crime where specific intent is an element of the offence, it means that the prosecution must prove not only that you committed the act, but that you had the necessary intention to commit the crime.

There are in fact, two parts to offences requiring specific intent that must be proved: the physical act and the mental element of intent.

Examples of offences where specific intent is necessary include murder, kidnapping and recklessly causing grievous bodily harm with intent.

If a person who was intoxicated at the time that they killed another person is acquitted of murder, self-induced intoxication cannot be used to acquit them of manslaughter.

If an offence falls within the specific intent category, evidence of intoxication is allowed in court.

Evidence of self-induced intoxication can be taken into account when determining whether or not the person had the required intention to commit the crime.

However, if the person resolved to commit the offence before becoming intoxicated, or did so in order to strengthen their resolve, this does not apply.

In other words, the prosecution must prove that, despite being intoxicated, the accused person intended to commit the crime.

So if a person, although intoxicated, can still be proved to have had the requisite intent to commit the crime, they may be convicted of an offence of specific intent.

If you are convicted of a crime that you committed while intoxicated, intoxication at the time of the offence cannot be considered during sentencing to allow you a more lenient punishment, according to the Crimes (Sentencing Procedure) Act.

Other offences

Some offences don’t require a mental element – the offence is complete by the action.

For these offences, intoxication is not a defence, unless it was not self-induced.

Intoxication cannot be taken into account to consider whether or not the relevant behaviour was voluntary.

In situations where intoxication forms part of the offence, such as drink-driving, self-induced intoxication will obviously not be taken into account as a mitigating factor.

What about the one-punch laws?

The one-punch laws that were introduced the beginning of the year amped up the potential penalties for drunken assaults resulting in death, which now involve mandatory sentencing of at least 8 years in jail and a maximum of 25 years.

The legislation specifically targets those who are intoxicated as part of the NSW governments move to crack down on drug and alcohol-fuelled violence.

According to the Crimes Act 25A, a person who assaults another by intentionally hitting them with their body or an object resulting in death can receive 20 years imprisonment.

If, however the offender was intoxicated at the time of the incident, they may be sentenced instead to a prison sentence up to 25 years but with a minimum of 8 years.

As counter-intuitive as it may seem, far from being a defence, intoxication actually increases the severity of the crime, and increases the punishment.

The exception is of course, if the intoxication was not self-induced.

Self defence

If a person committed an offence while acting in self-defence, their state of intoxication may be considered.

But it can only be considered in determining if the person believed they were in danger and needed to defend themselves – it cannot be considering when determining if their response to the perceived threat was reasonable.

This means that the fact a person was intoxicated when they wrongly concluded that they were in danger; however how this person responded to the perceived danger, whether real or not, cannot be excused by intoxication.

Their response must be judged against that of the reasonable, and sober, person.

Witness stand

In both civil and criminal trials, both parties can call witnesses.

However, in a criminal trial, the prosecution bears the main burden of calling witnesses.

According to the Prosecution Guidelines, the prosecution must call all apparently credible witnesses if their evidence is:

  • Admissible;
  • Essential to the prosecution case; and
  • Material or relevant to the proceedings – this includes witnesses that may not be favourable to the prosecution

Evidence which is merely repetitious or proves unchallenged facts by both parties should not be called, unless the defence wishes it to be.

The prosecution is not allowed to refrain from calling a witness as a tactical consideration and they cannot choose not to call a material witness simply because their evidence does not match up with the case that the prosecution are trying to make.

Merely calling a witness does not mean that the prosecution embraces or agrees with the testimony of that particular witness, but it is their duty to call all material witnesses.

The prosecution can only refuse to call a witness if it is obvious that they are so devoted to the defendant that they will not tell the truth.

And if the prosecution does decide not to call a witness who could be reasonably expected to appear, the defence must be notified.

The prosecution must also give a reason for their failure to be called, such as the witness was not available or deemed untruthful.

Police failure to call a witness can sometimes cause such a substantial miscarriage of justice that a trial may be overturned.

This happened in the case of R v Kneebone where a girl had accused her mother’s boyfriend of assaulting her.

During that trial, police failed to call the mother to give evidence.

The mother was in the house during the alleged attack and was said by the daughter to have intervened at one point.

However, the prosecution did not call her despite the fact that she was a material witness.

On appeal, it was held that the failure to call the mother caused a substantial miscarriage of justice. The conviction of the defendant was quashed and a new trial was ordered.

The fact that the prosecutor bears the responsibility of calling material witnesses can sometimes work to the advantage of a defendant in a criminal trial.

The party calling the witnesses examines them first, and then the opposing side can cross-examine. Cross-examining a witness is advantageous because you may ask leading questions, which is not allowed during the examination in chief.

Leading questions are questions that invite a particular answer and are often an effective means of questioning a witness.

However there is a problem for the defence: if the prosecution refuses to call a witness, the judge does not have much scope to intervene.

In Australia, judges are not supposed to call witnesses except in very, very exceptional circumstances.

So while it is the prosecution’s job to call witnesses, a failure to do so may be difficult to remedy in court, as a judge’s power to intervene here is limited merely to questioning the prosecution on their decision not to call a particular witness.

Does the defence have to call witnesses?

Unlike the prosecution, the defence has no ‘duty’ to call any witnesses.

Due to the right to silence, a jury is not permitted to draw any adverse inferences from the defendant’s choice not to go onto the witness stand and give evidence.

In fact, in a jury trial, a trial judge should direct a jury not to take note of this fact, as a jury otherwise believe that the accused is hiding something or speculate about what such evidence might have been.

On the other hand, if the prosecution fails to call evidence, a jury may consider this in certain circumstances.

They may not speculate about what such evidence may have been but they may take note that a particular witness was not called.

Rules surrounding calling witnesses and their evidence are quite complicated.

While it is definitely the job of the prosecution to call all material witnesses in most circumstances, this does not always happen.

This is very difficult to remedy in court so if you have any concerns about witnesses that may be important in your upcoming hearing at Downing Centre Local Court or trial at the Downing Centre District Court, it may be best to get expert advice from an experienced criminal lawyer.

Police evidence bag

If you are facing charges in Downing Centre Local or District Court, a good criminal lawyer may be able to get your charges dropped or reduced even before the case gets to a defended hearing or jury trial.

Experienced lawyers often achieve this by advising the prosecution in writing that their case is deficient in one or more respects, or the case is weak overall.

This written document is called ‘representations’ and can be remarkably successful in getting cases dropped provided that your lawyer follows it up by undertaking ‘charge negotiations’ with the prosecution.

Even if your case is going to a hearing or trial, there may be steps you can take to make sure that certain evidence never gets used against you in court.

For example, evidence may be inadmissible if it was illegally or improperly obtained.

This means that your lawyer may be able to get it thrown out of court so it will never be used against you.

If any evidence that the prosecution intends to use against you appears to have been obtained illegally or improperly, according to the Prosecution Guidelines, the prosecution must inform you of this fact.

What is illegal or improper evidence?

Illegal or improper evidence is anything that was obtained by police whilst acting in contravention of the law.

This can include illegal arrests and illegal searches.

For example, if police search you, your car or home without a suspicion on “reasonable grounds” that you committed an offence or had something illegal this may render the search illegal.

Simply looking nervous, even in a known drug area is not enough to justify a search.

Improperly obtained can even include confessions, if, for example, police deliberately made a false statement during questioning in order to induce you to give information.

A failure to properly caution a suspect may also lead to evidence being excluded.

Can illegally obtained evidence be admitted into court anyway?

Yes, sometimes illegally or improperly obtained evidence is still admissible in court. This is up to the magistrate or judge to determine.

Evidence found to have been unlawfully or improperly obtained should be excluded, but this principle is qualified by an exception: the evidence can used in court if the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.

This is sometimes seen as a balancing exercise between punishing an alleged wrongdoer and discouraging unlawful police behaviour.

In NSW, according to section 138 of the Evidence Act, when deciding whether or not to let the evidence in, a judge must look at:

  • The probative value of the evidence
  • The importance of the evidence in the proceeding
  • The nature of the offence
  • How serious the impropriety or contravention is
  • Whether the impropriety or contravention was deliberate or reckless
  • Whether the impropriety or contravention was inconsistent with any human rights recognised in the International Covenant on Civil and Political Rights
  • Whether any other action has been taken in relation to the impropriety or contravention
  • The level of difficulty in obtaining the evidence without breaking an Australian law

In essence, evidence will normally be excluded if the contravention was grave and the charges are not very serious.

Conversely, evidence will normally be admitted if the contravention was trivial and the charges are very serious; especially if the evidence that was illegally obtained is very important to the case.

So evidence that goes towards proving serious crimes like murder and commercial drug cases is far more likely to be admissible than less serious offences such as possession of a small quantity of drugs or common assault.

The rule is designed to deter police officers from acting outside the law.

In addition to illegal and improper evidence, the Evidence Act includes several other grounds on which evidence may be excluded from court: for example, where the evidence may be unfairly prejudicial, confusing or misleading, or lead to an undue waste of time.

If you have a court attendance notice scheduled in either the Local or District court at the Downing Centre and need more information about admissibility of evidence, it may be helpful to speak to a criminal lawyer.

An experienced criminal lawyer will be able to give you information tailored to your situation to make sure that you get the best possible outcome in your case.