A BASIC INTRODUCTION TO CRIMINAL LAW IN NSW

A BASIC INTRODUCTION TO CRIMINAL LAW IN NSW

egarding NSW laws and should not be
considered tailored legal advice. If you know someone who needs advice, we
encourage you to contact one of our criminal defence lawyers directly.
Criminal law in NSW can be daunting and unfamiliar for many people. This article is
intended to assist with a brief overview of what you should expect if you have been
charged.

1. How will I know if I have been charged?
If Police suspect you have committed an offence, and feel they have enough
evidence to proceed, they will charge you and you will have to attend Court.
If you are a suspect or have been arrested in relation to an offence, the police may
ask you to participate in a police interview. You should always seek legal advice
before agreeing to speak with police. You have the right to remain silent and do not
have to answer any questions that the police ask.

2. I have been charged with an offence – what next?
The Police must first serve you with documents that contain details of the allegation.
These documents are called the ‘Court Attendance Notice’ and ‘Police Facts’.
The Court Attendance Notice is a standard document that will contain the following
information:

  • the date and time you have to go to court,
  • the location of the court you have to go to,
  • the name of the police officer in charge, and
  • what criminal offence you have been charged with.
    The ‘Police Facts’ will contain details of the offence you are alleged to have
    committed. These details are usually obtained from statements provided by the
    alleged victim, witnesses or other investigating police officers. It may also include a
    summary of any CCTV footage of the offence, or details of forensic evidence that
    police have obtained, such as DNA or fingerprints.

3. Do I need to worry about bail?
If you were charged with an offence, the police may decide to formally arrest you. If
they did not place you under arrest, they will serve you with the CAN and Facts, and
you will be released until the first Court date.
If you were arrested, the police may release you with your undertaking to comply
with certain bail conditions.
Bail is the authorisation to be at liberty whilst you wait for your case to be finalised.
Depending on the nature of the allegations and your personal circumstances, bail
may be unconditional or may have conditions attached.

The most common bail conditions include a requirement that you must attend court
at a particular time and date, reside at a specified address, or report to your nearest
Police station on specified days.
If the charges are more serious, the police may decide to hold you in custody after
charging you. This is known as being ‘bail refused.’ You are entitled to make a bail
application at Court. For more details on Bail in NSW you should read our article
‘How to get bail in NSW’.

4. Your first court date
All criminal cases in NSW commence in the Local Court. Depending on what you
have been charged with, your case may remain in the Local Court until it is finalised,
or it may be moved to the District Court. The Local Court only deals with less serious
offences, whilst the District Court deals with more serious charges, which carry
higher penalties.

5. ​What happens at the first court date?
The first day you have to go to court is called a 'mention'. The mention is for the
Magistrate to find out whether you are pleading guilty or not guilty.
Your name will be published on the notice board inside the Court house, which will
tell you which Court room you need to go into. There will usually be a number of
other cases also listed in the same court room.
Before you go to court, you need to consider whether to plead guilty or not guilty to
the charges. It is recommended you seek legal advice before you get to this stage in
the case.

    On the first mention, if the accused enters a plea of not guilty, a Magistrate will:

  • Make orders for service of the prosecution brief of evidence upon the
    accused in 4 weeks; and
  • Adjourn the proceedings for a further court date in 7 weeks, usually to the
    same Court location as your first mention.

6. How do I know if I should plead guilty or not guilty?

If you plead not guilty it means:

  • you did not commit the offence you have been charged with, or
  • you did do it, but you have a defence, or
  • you don't want to admit anything and you want to make the prosecution prove
    their case.

7. Do I have a defence?
A defence is an explanation or reason that suggests you should be found not guilty
of a charge. A defence can be a denial that you did what the police say you did. You
may also have a defence if you have a legal excuse or justification for your actions.

8. What happens if I want to plead guilty?
If you plead guilty, it means you agree that you committed the offence you were
charged with and you do not have a defence. You will be convicted and the Court will
proceed to sentencing. The sentencing process can be complicated and have far
reaching impact on your future, so you should always ensure you have sought legal
advice before you get to this stage.

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