Criminal Magistrates Court
This comprehensive step-by-step guide covers all aspects of criminal practice and procedure for summary and indictable offences in the Magistrates Court, with supplementary guides specific to traffic offences and Domestic Violence Orders.
The guides provide easy to understand coverage of the procedural aspects of criminal law matters, from arrest and charge through to hearing and/or sentencing, including avenues for appeal and costs applications. Written by experienced practitioners, these guides provide practical tips for lawyers new to this area of work and a detailed overview to assist all practitioners, especially those supervising younger lawyers.
Recent updates to this publication can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Contents Getting the matter underway - Initial contact3 ”
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“ A full commentary on the law and practice as it currently applies to acting for the defendant in criminal proceedings in the Magistrates Court. Contents ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ Queensland Courts Queensland Government ”
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“ Magistrates Court Civil (Qld) District Court Civil (Qld) ”
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“ It is two in the morning and you receive “that” phone call. Your client is at the police station having just been arrested and he’s been given the phone to ring you for advice as to what he should do. To assist with answering that question, it is important to be familiar with, or at least able to ... ”
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“ Before presenting the client's case before the court, even for the simplest of pleas, be sure to take full instructions from the client. If the opportunity arises, get the client to fill in a criminal law questionnaire or similar document. If the client has filled it in, you cannot be accused ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ Bail applications are governed by the Bail Act 1980 (Qld). If the charges are not that serious or if the client has no criminal history the police may charge the client and then release them to appear in court. This may be either by notice to appear or via an undertaking as to bail with or without ... ”
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“ If your client is not given bail at the watch house, they will be remanded in custody and taken to court as soon as reasonably practicable. Depending on the size of the courthouse, the custody matters will be dealt with in their own court. In the smaller centres, the custody matters will be ... ”
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“ Part 3 of the Bail Act 1980 One of the matters that will need to be taken into account in preparing for a bail application is the question of a surety. Sureties are often granted by magistrates where there is some doubt as to whether the accused will appear. It is important to note that any ... ”
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“ A colleague once flippantly opined “the police QP9 is ‘98% fact free’”. Basically, the QP9 should contain the client’s criminal history, a factual summary of the details of the offence/s, and the legislation under which the client has been charged. Whilst the client may wish to plead guilty to the ... ”
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“ Practitioners should format the submission like this: Mark the submission ‘without prejudice’. ”
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“ Many submissions are rejected. There is no requirement for the prosecution to tell you why your representations fail but if you ask they will very often tell you particularly in the new renewed spirit of co-operation since Moynihan. It may be that you aimed too high, in which case further ... ”
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“ At the first return date you can always get a short adjournment, of up to about three weeks, if required to enable any requested specified statements and/or copies of exhibits to be prepared, copied and delivered and for a second or adjourned conference to be held. (But make sure your client has ... ”
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“ Case conferencing must take place before committal or summary callover, as discussed above (see Practice Direction 9 of 2010). However, if your client wants the matter completed on the first occasion and the amendment you want is just something minor in the way the facts are written, for ... ”
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“ Practitioners should make themselves familiar with Practice Direction 10 of 2010. If it is required, the second Appearance will be 14 to 21 days after the first Appearance or such longer period as necessitated by the regular sitting days of the Court. ”
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“ To determine whether a Magistrates Court can deal with the client’s plea of guilty you firstly need to answer the question of whether the client’s matter is a summary offence or an indictable offence. Regulatory and summary offences are dealt with in the Magistrates Court. See s 19 of the ... ”
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“ In many summary matters you need to be prepared to conduct a plea - that is, make submissions with respect to the sentence - at the same time as the plea of guilty is entered. In some cases the actual sentence can be adjourned to obtain further material - for example, medical reports, references. ”
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“ Advise the client about obtaining character references. References must be specific to the offence. A number of copies of this information sheet should be handed or sent to the client to give to their referees. All references should be addressed to 'the presiding magistrate' at the Magistrates' ... ”
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“ A willingness to make recompense to the victim of an offence is an indication of the client’s contrition and remorse. Practitioners should address this issue with the client before the sentence hearing. In the event of the offence having caused some injury, loss or damage, ensure that the issue ... ”
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“ Practitioners should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report (PSR), or a court ordered psychiatric assessment. If it is likely and an adjournment (usually six weeks for a full background report) will therefore be required, you should ... ”
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“ It is important when conducting a plea before the Magistrates Court to be concise. Most courts are very busy and it is therefore important not to waffle or waste time, as it will only irritate the magistrate and an irritated magistrate is not necessarily going to be converted to your cause or be ... ”
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“ The procedure in the conduct of a plea is normally as follows: Arrive at court and check the list to make sure you are there on the correct day. Clients invariably have great difficulty in reading a calendar. Ensure you arrive at court well before the listed hearing time (usually 10 am but check ... ”
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“ Preparation for hearing A full proof of evidence - a statement - should be attained from the client in regard to all of the circumstances surrounding their case, and the evidence that they propose to give. A proof of evidence should also be obtained from all witnesses prior to the hearing ... ”
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“ A full proof of evidence - a statement - should be attained from the client in regard to all of the circumstances surrounding their case, and the evidence that they propose to give. A proof of evidence should also be obtained from all witnesses prior to the hearing although quite often you may not ... ”
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“ A no case to answer submission is at the close of the prosecution case and is a question of law. You would submit that the defendant has no case to answer where you are seeking to argue that the charge should be dismissed on the basis that the prosecution has failed to supply evidence to support ... ”
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“ After the close of the Crown case and any no case to answer submissions, the accused can then call evidence. With the leave of the court the accused or his representative may make an opening statement (it is unlikely that this will occur very often at all). The magistrate will ask the accused or ... ”
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“ Costs against the prosecution are often very difficult to get however costs for lack of disclosure are now somewhat easier to get. Costs are governed by Part 6, Division 8 of the Justices Act 1886 (Qld). That legislation does not provide any order for costs on adjournments. In practice however, ... ”
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“ The purpose of committal proceedings is to decide whether or not there is enough evidence to warrant the person being charged with the offence to stand trial. The prosecution or defendant elects to proceed by indictment after the case conference, the purpose of which is to see whether or not the ... ”
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“ See s 110B (3) of the Justices Act 1886 (Qld). The Chief Magistrate outlined the procedure and the law relating to the application in Police v DWB [2011] QMC 4 at [4]-[19]. ”
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“ The matter is mentioned by you or police prosecutions or the DPP and it is indicated that the matter is ready to proceed. The prosecution tells the magistrate the charges upon which committal is sought. ”
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“ The awarding of costs to the accused in committal proceedings is not allowed in Queensland. ”
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“ The Penalties and Sentences Act 1992 contains all the sentencing options for adults in all courts in Queensland. Sentencing options really can be divided into three categories those being non custodial, intermediate and custodial. ”
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“ An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s GP and any attending specialist (subject, of course, to the client’s ability to pay for such reports). A ... ”
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“ Even if the client does not have a psychological condition a psychological report is often helpful in putting relevant matters to the court. In serious matters it is often appropriate to obtain a report on your client from a psychologist or psychiatrist as it will flesh out details of your ... ”
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“ Written submissions It is sometimes appropriate to do written submissions on sentence, particularly in the higher courts but also, for particular cases, in the Magistrates' Court. For some types of offences - for example, possession of child pornography, indecent exposure, - discussion of the ... ”
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“ Suspended sentences are often referred to or thought of as non custodial sentences however, they are in fact sentences of imprisonment that have been suspended either wholly or partially. This means that the offender will only serve some, if any, time in prison. Any breach of a suspended ... ”
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“ Part 8A of the Penalties and Sentences Act 1992 deals with specific drug and alcohol treatment orders for certain offenders whose criminal behaviour is linked to their severe drug or alcohol use. A treatment order may only be made for an offender if the offender has a severe substance use disorder ... ”
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“ Generally speaking, imprisonment is only ordered as a last resort. That is, the court must be satisfied that there were no appropriate alternative sentences. See s 9(12) of the Penalties and Sentences Act 1992 (Qld). This does not apply to all offences - for example, certain violent offences, ... ”
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“ Your role and your retainer end neither at the moment you sit down after making your submissions on sentence, nor when the bench passes sentence upon the client. The outcome needs to be explained to the client – most lay people can sit in court and listen to a judicial officer give a short ex ... ”
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“ See the Criminal Law (Rehabilitation of Offenders) Act 1986. If no conviction has been recorded, your client is not obliged to disclose their conviction. ”
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“ Interstate convictions can be taken into account by the court on sentence, but they do not generally appear on the QLD criminal history that the police tender to the court and they do not have to be voluntarily disclosed. You must however tell the court of any interstate convictions if you are ... ”
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“ Appeals from decisions of the Magistrates Court can be made to the District Court under the Justices Act 1886 (Qld). There is an appeal right to the District Court by any person who has been convicted or sentenced in the Magistrates Court. See s 222 of the Justices Act 1886 (Qld). As appeal is a ... ”
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