SUMMARY PROCEEDINGS QUEENSLAND MAGISTRATES COURT

If you have been charged with a criminal offence in Queensland, the first court you will appear in is the Magistrates Court. The criminal offence you are charged with will determine where it is finalised. For example, some criminal offences are finalised in the Magistrates Court, while others are finalised in the District or Supreme Court.

This article summarises the process for criminal offences when they are finalised in the Magistrates Court.

THE QP9 COURT BRIEF

When police charge a person with a criminal offence, they will prepare a document called a Court Brief, commonly referred to as a QP9 Court Brief. This is one of the first documents a criminal lawyer will want to see before they give you any advice in relation to the offence you are charged with. A criminal lawyer will want to see this document because it sets out: –

1. The offence.
2. The date of the alleged offence.
3. The facts (what police say you did) police rely upon to prove the offence.
4. Any damage they allege you have caused.
5. If the police say you have co-operated with them.

If you have a criminal lawyer representing you, they should ask the prosecution to give this document to them before your court date. By them having this document before your court date can help determine what may happen with your case. If you only get this document on your first court date, it is likely your lawyer will need an adjournment so they can review the QP9 Court Brief and give you advice.

For most cases finalised in the Magistrates Court, the QP9 Court Brief is the only document police prepare in relation to an offence a person is charged with.

 

WHO HEARS CRIMINAL CASES IN THE MAGISTRATES COURT?

The person who hears/decides cases in the Magistrates Court is a Magistrate. If you plead guilty to a criminal offence, it is the Magistrate who will decide on the penalty you receive. Likewise, if you go to trial, it is the Magistrate who will decide if you are guilty, or not guilty of the criminal offence. There are no juries in the Magistrates Court.

 

WHAT ARE “MENTIONS” IN THE MAGISTRATES COURT?

When you first go to court for a criminal charge, this is called a mention of your case. Unless you plead guilty and are sentenced at the first mention of your case, your case could have several mentions.

A mention of a case refers to when a Magistrate reviews a case in Court. The prosecutor and defendant (and/or defence lawyer) appear in Court. The Magistrate wants the prosecutor and defendant to tell them how they wish the case to proceed.

There are many different things that can happen at a mention, some of which are detailed below.

1. You may ask the Magistrate for your case to be adjourned for a mention to

another court date so you can get legal advice.

2. If you have a lawyer representing you, your lawyer may ask for your case to be adjourned for a mention to another court date, so they can speak to you and get your instructions.

3. You or your lawyer may ask for your case to be adjourned to another court date to allow the prosecution time to disclose (give) material (e.g. witness statements or other pieces of evidence) to you.

4. You or your lawyer may ask for your case to be listed in order for you to be sentenced for the offence, or for it to be listed for trial.

 

DO YOU NEED TO GO TO COURT WHEN YOUR CASE IS BEING MENTIONED?

The answer to this question is not straightforward. Whether or not you need to go to court will depend on:

1. If it is the first time your case is being mentioned in court;
2. If you have already been given bail by the police; and
3. If you are legally represented and your lawyer is going to be at court.

If it is the first mention of your case in court, you generally need to attend court. However, there are exceptions to this rule which are discussed below. If you have a lawyer, you must ask them if you need to go to court. If you do not have a lawyer, you must go to court whenever your case is being mentioned.

 

THE FIRST MENTION

 

Do You Need To Go To Court?

The answer to this question depends on:

(1) How you have been charged (e.g. Issued a Notice-to-Appear or charged at the watch-house); and

(2) If you have a lawyer representing you.

If you have been issued a Notice-to-Appear 

If the police issued you a notice to appear, then you must go to court. You must go to court even if you have a lawyer representing you.

If you have been charged at the watch-house and you have been given bail

If the police arrested you and gave you bail (i.e. you signed a bail undertaking), then:

• If you do not have a lawyer, you must go to court.

• If you have a lawyer and they are going to court to appear at the mention for you, then it is likely you will not need to go to court. When a person is already on bail, a lawyer can generally ask the Magistrate to excuse their client’s appearance.

If you have a lawyer, you must check with them if you need to go to court for the first mention of your case.

BAIL

Persons who are charged with a criminal offence are remanded in custody (prison) or are given bail.

If you were arrested and police gave you bail, then bail should not be an issue at your first court mention. If police gave you a Notice-to-Appear, bail will be discussed.

When you appear in court for the first time there are three things regarding bail that might potentially happen:

1. The prosecution does not object to you being granted bail and does not ask the Magistrate to make any bail conditions.

2. The prosecution does not object to you being granted bail, but they want you to have some bail conditions.

3. The prosecution objects to you being granted bail and wants you to be remanded in custody (i.e. kept in prison) while your case is being resolved. This is rare, because if police wanted you in custody, then they would have arrested you and kept you in custody.

WHAT HAPPENS IF THE PROSECUTOR ASKS THE MAGISTRATE TO REFUSE YOU BAIL?

If the police do not want to give you bail, they will arrest you and keep you in custody until your first court appearance. If you are remanded in custody at the time of your first court appearance, the Magistrate will probably ask you if you want to apply for bail. Before you decide if you will apply for bail, you need to make sure you are prepared for it and have all the information you need. You only get one chance to apply for bail in the Magistrates Court. If the Magistrate refuses giving you bail, then you can only apply for bail a second time, if you can show a change in your circumstances. If you cannot show a change in your circumstances, you will waste your time in applying for bail. It is easier applying for bail in the Supreme Court of Queensland, because you do not need to show any change in your circumstances.

SIGNING THE BAIL UNDERTAKING

If the Magistrate gives you bail, you will need to sign the bail undertaking before you leave the courthouse. Once you leave the courtroom, you generally need to go to the court registry and wait for your bail undertaking. The clerk of the court will call your name out to say your bail undertaking is ready for you to sign.

If you do not sign your bail undertaking before leaving the courthouse, a warrant may be issued for your arrest.

 

WHAT ARE YOUR OPTIONS AT THE FIRST MENTION OF YOUR CASE IN COURT?

We strongly recommend you get legal advice before your first mention, so you know your options.

When you go to court for the first mention, there are generally a few options open to you, which are detailed below.

Option 1:   Plead guilty to the charge and be sentenced.

Option 2:   Tell the Magistrate you intend on pleading guilty to the charge, but you want your sentence hearing adjourned to another date.

Option 3:   Ask the Magistrate for an adjournment so you can get legal advice

Option 4: Ask the Magistrate for an adjournment so you can case conference with the Prosecution.

Option 5: Ask the Magistrate for an adjournment because you are waiting for the prosecution to give you material for your case.

Option 6:  Ask the Magistrate to list your charge for trial (often referred to as a summary hearing).

 

Option 1:   Plead guilty to the charge and be sentenced

If you go to court and you do not already have a copy of the QP9 Court Brief, the prosecutor should have a copy . The QP9 Court Brief will tell you the offence you are charged with and it will give you a summary of the facts the police allege makes up the offence. If you want to accept (i.e. you agree) the facts and the charge as they are alleged in the QP9 Court Brief, you can enter a plea of guilty to the charge and be sentenced by the Magistrate. This means your sentence hearing will take place straight away and the Magistrate will tell you the penalty they are giving you.

Option 2:   Tell the Magistrate you intend on pleading guilty to the charge, but you want your sentence hearing adjourned to another date.

If you want to accept (i.e. you agree with) the facts and the charge as alleged in the QP9 Court Brief, but you are not ready for your sentence hearing, you can ask the Magistrate for an adjournment. You should tell the Magistrate you intend on pleading guilty to the charge on the next court date. The reason you want to do this is so you can put it on the court record that you are pleading guilty. The Magistrate should note the court file that you said you were pleading guilty on the next occasion. This means when you go to court on the next occasion, you can ask the Magistrate to treat your plea of guilty as an early one.

So, why would you want to adjourn your sentence hearing to another date?

There are various reasons why someone may want to adjourn their sentence hearing to a date in the future. You may want time to get material for your sentence hearing.

This material could be:

1. Character references- you may want to get some references from persons who know you well.

2. Certificates of achievement.

3. A letter from a doctor, psychologist or psychiatrist explaining any of your current medical conditions, personal circumstances, or if you have been receiving counselling to address your offending.

If you adjourn to get your material, the material may help to reduce the penalty the Magistrate imposes.

Option 3:   Ask the Magistrate for an adjournment so you can get legal advice

Like anything in life, it is important to be informed and know all your options. You can tell the Magistrate you are seeking an adjournment so you can get legal advice. We recommend you ask for a 4 week adjournment. This will allow enough time for your lawyer to get the QP9 Court Brief from the prosecution and discuss the charge with you. It is best to ask for longer adjournments rather than getting multiple short adjournments. The fewer adjournments you request, the better it will be for you.

 

Option 4: Ask the Magistrate for an adjournment so you can case conference with the Prosecution

You may ask the Magistrate to adjourn your case to another date so you can “case conference” with the prosecution.

They define “case conference” in Magistrates Court Practice Directions to mean:

“negotiations, (including discussions as to whether or not negotiations will take place) between prosecutions and defence to discuss issues in dispute in order to bring about an early resolution to proceedings, which negotiations may result in, but are not limited to the amendment, substitution or withdrawal of charges and/or the agreement as to a factual basis of sentence and submissions on the sentence range”.

When you negotiate with the prosecution you may ask them to:

*  amend a charge;

* substitute the charge before the court with a fresh charge;

* discontinue the charge; or

* agree to a factual basis for sentence.

Option 5:   Ask the Magistrate for an adjournment because you are waiting for the prosecution to give you witness statements and/or exhibits for your case

You may ask the prosecution to disclose (to give) you specific witness statements or exhibits. The prosecution will need time for the police to get the statements and/or exhibits so they can give them to you. The adjournment will allow the prosecution time to get you the material you want and for you to look at it. In some situations, you may want to see some of the evidence before deciding what you want to do. For example, police may allege there is CCTV footage showing you committed the offence. You may want to see the footage before you plead guilty to the charge to make sure it is you.

 

Option 6: List your case for summary trial (summary hearing).

We strongly recommend you get legal advice before listing your case for trial.

You can ask the Court to list your case for trial (summary hearing). There are risks of going to trial. If you go to trial and lose, you will most likely get a higher penalty than had you pleaded guilty. If you are at risk of serving time in prison, then if you lose at trial you will spend longer in jail than had you pleaded guilty. The Courts encourage defendants to plead guilty by reducing penalties because they recognise the defendant’s co-operation with the administration of justice. The law says the Court must consider a defendant’s guilty plea and it may reduce the sentence that would have been imposed had a plea not been entered.

Your matter should be listed for summary trial at least 49 days (7 weeks) away from when it is first listed. The full brief of evidence must be made available by the Prosecution for you to collect from them within 35 days (5 weeks) of your matter being listed for trial, and no less than 14 days (2 weeks) from your trial date.

FURTHER MENTIONS AFTER THE FIRST MENTION

Once negotiations with the prosecution end and you have got any material you asked for, the Court will expect you to enter a plea (i.e. guilty or not guilty) and tell them what you are doing.

There are three things that can happen:

1. The prosecution agrees to discontinue the charge.

2. You are ready to plead guilty to the charge or list your case for you to be sentenced.

3. You decide to plead not guilty to the charge and it is listed for trial.

1. The Prosecution Agree To Discontinue The Charge

If the prosecution agrees to discontinue the charge, the prosecution should tell the

Magistrate they offer no evidence. This means the prosecutor is telling the Magistrate they are not presenting any evidence for the charge. If there is no evidence, the Magistrate has no choice but to discontinue the charge and discharge you. If this happens, it is the end of the matter and you do not have to go back to court for the charge.

2. You Decide To Plead Guilty To The Charge

If you are pleading guilty to the charge, the Court may want to sentence you straight away, or they may give you a date for your sentence hearing. The Practice Directions say your sentence hearing can be adjourned if you have a good reason.

3. You Decide to Plead Not Guilty

If you are pleading not guilty and are going to trial:

• Your trial should be listed at least 49 days (7 weeks) away from when it is listed.

• The full brief of evidence must be available for you to collect from the prosecution within 35 days (5 weeks) of your case being listed for trial, and no less than 14 days (2 weeks) from your trial date.

 

WHAT IS A FULL BRIEF-OF-EVIDENCE?

They define a full brief in the Magistrates Court Practice Direction No. 10 of 2010 as:

 “ means a brief which contains copies of signed statements of witnesses and exhibits upon which the Prosecution proposes to rely on in the proceeding and all things in the possession of the Prosecution, other than things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the defendant”.

The full brief-of-evidence should contain all the evidence the Prosecution intends to rely upon in proving their case against you (i.e. all the evidence they need to prove the charge).