A criminal prosecution can be a long and complex process. It commences with a police investigation and if there is sufficient evidence, an accused person will be charged. The matter then proceeds through the court system where is finalised at a point either before, during or after trial.
This article sets out the various steps of a criminal case and what to expect. It is important to remember that a person can contact a criminal lawyer for advice at any stage in the process, even before being charged with a criminal offence. It is highly recommended that anyone arrested for a criminal offence, obtain legal advice from an experienced criminal defence lawyer, before speaking to police or participating in a police interview.
- Investigation and charging an accused – Bail applications
An investigator’s role is to collect evidence and take statements from witnesses to be used in a criminal prosecution. Statements can be collected from both the alleged victim of the crime and any persons deemed to know something about the incident. If the investigator determines there is sufficient evidence, an accused person will be charged.
If the charge can be dealt with in the Magistrates Court, it will remain with the police prosecution team. If the charge is more serious and must be dealt with in the District or Supreme courts, the file will be transferred to the State Director of Public Prosecutions (DPP). The briefs referred to the DPP are assessed in accordance with the Prosecution Policy of the DPP. They consider whether there is sufficient evidence to prosecute the case and reasonable prospects of securing a conviction. Furthermore, that must be satisfied that the prosecution is in the public interest.
When a person is charged with a criminal offence, bail needs to be considered in the first instance by the arresting police officer. They have the discretion to grant bail or refuse bail. If bail is refused by the police, a charged person will be brought before a Magistrate as soon as possible to consider bail.
If bail has been refused by the police, it is important to speak to lawyer. Generally speaking, you only get one opportunity to make a bail application, so it is highly recommended you engage an experienced criminal defence lawyer, such as Dr Clint Hampson, to make the bail application on your behalf.
- Commencing Proceedings – disclosure/evidence
When an accused person appears in court, they can either plead guilty, not guilty or seek an adjournment for legal advice.
In most situations, it is beneficial to obtain disclosure prior to entering a plea. The police have an obligation to provide disclosure to an accused person or their lawyer. Disclosure is all the evidence relating to the investigation. Every accused person has the right to know what case they face. It is important that you have a lawyer review the disclosure in your matter prior to entering a plea of guilty or not guilty.
Once the disclosure is received, an experienced lawyer will be able to provide you with advice about the charges, any potential defences, the likelihood of successfully defending the matter as well as the likely penalties if convicted. An experienced and skilled lawyer may be able to successfully negotiate with the police or DPP to achieve a suitable resolution to your matter.
If an accused pleads guilty, the Magistrate will sentence the accused if the matter can remain in the Magistrates court or commit the matter for sentence to a higher court, to be sentenced by a judge.
If an accused pleads not guilty, the matter will be listed for trial.
When a trial occurs in the Magistrates court it is often referred to as a hearing. The matter will be decided by a Magistrate (no jury). During this hearing any witnesses pertinent to the case give their evidence in the court and any other types of evidence is provided. The rules of evidence apply. The matter will be prosecuted by the police. The prosecutor must prove the guilt of the accused beyond a reasonable doubt. If the Magistrate hands down a guilty verdict they will impose a sentence. If they are found not guilty, the matter is dismissed, and costs can be awarded to the accused person to pay for their legal fees.
It is recommended that if you are proceeding to trial, you engage an experienced criminal defence lawyer to represent you.
When a defendant is committed for a trial in a superior court, an indictment is prepared by the DPP which is a list of all the offences the accused has been charged with. The Judge runs the trial however it is the jury who decides whether the accused is innocent or guilty. Jury trials are complicated, and it is strongly recommended that you engage a lawyer to represent you in any trial in the superior court.
If found guilty, the accused (offender) is sentenced by the court. Types of sentences include imprisonment, suspended imprisonment, a fine, or orders such as a community based order.
People who have been convicted of an offence have the right to appeal a decision, which is then reviewed by a higher court. The appellant may lodge an appeal against the conviction or the sentence or both.
How a Criminal Lawyer Can Help You Through This Process
If you need advice regarding a criminal case contact Legal Pathways.
Legal Pathways has a team of first-class criminal lawyers who not only have extensive courtroom/advocacy experience, but hold related qualifications and experience in the areas of forensic science and criminal investigation. As such, our criminal lawyers can provide you a comprehensive, unparalleled and unique legal service.