(c) 2017-2020 by Joseph Petersen. All rights reserved.      Legal Notices and Disclaimers

Criminal Law

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This page looks at:

  • Basic court process

  • Preparing for your first court date

  • Police Family Violence Orders

  • Pointers about how to act at court

I have a charge listed before a court. What is the process?

The path your charge will take depends on two main matters - whether you plead Guilty or Not Guilty to the charge, and the type of charge.

 

Some matters, like drink driving, common assaults, most traffic matters, low-level stealing and the like, are called summary charges and are dealt with by a Magistrate in your nearest Court of Petty Sessions. These are normally prosecuted by officers from Tasmania Police.

For more serious charges (for instance, most sexual offences, murder, manslaughter, robbery, etc.) these are called indictable charges and are normally dealt with before the Supreme Court of Tasmania and heard before a jury, but some initial procedural steps will take place in the Magistrates Court. These are normally prosecuted by lawyers from the Office of the Director of Public Prosecutions.

 

In either case, if you plead Not Guilty, your matter will be listed for hearing (in the Magistrates Court) or trial (in the Supreme Court), so that a decision can be made based on the evidence around your case. Whilst this can happen quickly, hearings and trials usually take many months to occur.

If you plead Guilty, the Prosecution will advise the Court as to the facts of the charge and you (or your lawyer) will be invited to put matters before the Court that may convince a court to lessen your penalty, called a plea in mitigation.

What do I need to do before my first court date?

If you are going to obtain legal advice or legal representation at Court, it is important to do this as early as possible. In some cases, this can allow negotiations or investigations to occur that might not be possible in the future.

You do have a right to an adjournment on your first appearance at Court. However, this is the only time that this is automatic - all other adjournments are only by permission of the Court, which may be unhappy with any perceived delays.

You (or your lawyer) can apply for some basic documents from Tasmania Police about your charges free of charge. These are the complaint (the formal statement of your charges), the facts for the Prosecutor (a summary of the allegations against you) and a copy of your statement of prior convictions.

Other documents, such as witness statements, forensic evidence or photographs, cannot normally be obtained until after a plea of Not Guilty is entered, due to policy enforced by Tasmania Police's prosecution services. For people not in receipt of legal aid funding there is also a disclosure fee (at the time of writing, around $56.00).

I've been served with a Police Family Violence Order. What now?

Police officers are able to serve a Police Family Violence Order on a person if they have reasonable grounds to believe that a family violence offence has occurred - they do not have to be satisfied "beyond reasonable doubt" that it actually happened.

A Police Family Violence Order is normally made for a period of 12 months. Failure to comply with the order can carry a jail term of up to 12 months. If a Court should make a Family Violence Order later on, this will replace any Police Family Violence Order.

Where both parties consent, they can apply to Tasmania Police to have the order changed or cancelled. However, this also requires the approval of Tasmania Police which is not automatic. If Police refuse, or the other party is not willing to change/cancel the Order, you can make an application to the Magistrates Court to have the order amended or revoked. In these situations we strongly suggest obtaining the assistance of a lawyer. 

Until a Court or Tasmania Police overturn an order, you must comply with its terms, even if the other party does not wish to comply. For example: if an order says you cannot visit your former partner's address, you cannot go there even if they invite you to visit. Many people are charged for such breaches.

Some pointers about attending at Court:

  • All courthouses in Tasmania have security screening at the front entrance, including metal detectors and x-ray machines for hand baggage. Court security officers carry full authority in any courthouse to detain and arrest.

  • Photographic and recording equipment is prohibited. 

  • Makes sure your mobile phone is off or on silent. It is actually an offence to interrupt court proceedings with a ringtone or the like and it can, for repeat offenders, be considered contempt of court.

  • The correct form of address for any judge or magistrate in Tasmania is "Your Honour." Try and avoid "sir" or "madam". 

  • When a magistrate or judge is speaking to you directly, or you are talking to them, stand up. 

  • As a general rule, you are welcome to bring family or friends to Court. Courtrooms are open to the public and to the media. However, special rules apply in regards to sexual offences and matters involving defendants aged under 18.