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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 Intervention 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. 



MATTER PLAN
  • “ Contents Overview and Penalty units3 ”
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  • “ Victoria A full commentary on the law and practice as it currently applies to acting for the defendant in traffic offence proceedings in the Magistrates' Court ”
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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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        • “ 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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    • “ VicRoads quick links: Penalties ”
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    • “ Criminal Magistrates’ Court Magistrates’ Court Civil ”
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  • “ Most clients charged with offences under the Road Safety Act 1986 (RSA) and Road Safety Road Rules 2017 will not have been arrested and taken to a police station for interview/bail so your first contact will usually be by appointment; if not, refer to the Criminal – Magistrates’ Court guide. It is ... ”
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    • “ The vast majority of offences have two basic elements: a physical act, called the actus reus; and the requisite criminal intention or mental state, called the mens rea. In many traffic offences, the issue of mens rea is somewhat different and the offences are strict liability or in some limited ... ”
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    • “ Strict liability is an offence where the prosecution does not have to prove a guilty mind. However, there is an available defence of honest and reasonable mistake of fact - that is, that the person was honestly mistaken as to certain facts existing but had a reasonable belief about those facts ... ”
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    • “ Different traffic offences have different consequences. Ensure you consider Loss of licence, Additional penalties and Re-licensing below when advising your client as to the pros and cons of pleading or contesting the charges. ”
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    • “ Just because there will be a plea of guilty doesn’t mean that your client must plead to all of the charges put forward by the police or on the basis of the allegations set out in the summary. Often your client will be charged with multiple offences laid in the alternative and covering the same ... ”
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    • “ During negotiations, make sure that you address the summary of facts which will ultimately be read out to the magistrate as well as the actual charges. Look at the summary in the hand up brief and identify what you might want removed, including: all irrelevant material, including material that ... ”
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    • “ This guide does not address offences such as culpable driving, dangerous driving causing death or negligent driving causing serious injury.  It is however worth noting that, in some circumstances, it may be worth making a summary jurisdiction application for a dangerous driving causing serious ... ”
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    • “ Contest mention hearings See s 65 of the Criminal Procedure Act 2009. ”
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    • “ A full proof of evidence (a statement) should be obtained from the client in regard to what evidence he or she proposes to give. A proof of evidence should also be obtained from all witnesses. If you intend to issue any subpoenas, this must be done before the hearing date (and you may be asked to ... ”
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    • “ If you will be calling witnesses other than your client, you will need to issue witness summons. It is very uncommon for opening addresses to be given in summary hearings; indeed, leave of the court is required to do so (s 59 Criminal Procedure Act 2009). If any openings are given, they are ... ”
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    • “ It is sometimes necessary and always prudent to obtain written instructions from your client to enter a plea of guilty so that there can be no issue later of your client traversing their plea and claiming that they were not properly advised. ”
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    • “ You should advise your client about obtaining character references - for instance, where a discretionary licence suspension is open and an employer can state, in addition to the matters below, why your client relies on his/her licence and what effect a loss of licence or a conviction would have on ... ”
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    • “ It is rare in the Magistrates' Court that oral evidence is given on a plea. The practice is that the vast majority of pleas are conducted from the bar table with the legal representative of the client making submissions. Often the representative will indicate that their client’s parent or spouse ... ”
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    • “ Traffic offences often result in a financial penalty in combination with a loss of demerit points and loss of licence.  Of course, there are offences in the Road Safety Act that carry a maximum term of imprisonment, and this is a likely outcome for repeat offenders.  Also consider the information ... ”
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    • “ Often of most concern to your client is the question, ‘Will I lose my licence?’  The answer is dependent on the offence, the timing of the offence and any relevant prior convictions but note the following specific categories that flow from a finding of guilt. ”
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    • “ Drink driving results in mandatory licence suspension pursuant to Schedule 1 of the Road Safety Act. Column 1 ”
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    • “ High end speeding offences now result in mandatory licence suspension pursuant to Schedule 5 of the Road Safety Act. Speed ”
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    • “ In addition to the mandatory suspension periods above, pursuant to s 28 Road Safety Act any finding of guilt under the Road Safety Act in connection to driving a motor vehicle may result in a licence suspension and disqualification for such time as the court thinks fit. The court is more likely to ... ”
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    • “ Any prescribed loss of demerit points for an offence is applicable on the offence being proven. Demerit points are outside the powers of the court so there is no need to bring them up in your submissions. ”
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    • “ Part 6A of the Road Safety Act was fondly referred to as the ‘hoon legislation’ when it was introduced.  Police with 'reasonable grounds' can impound a car on the spot or upon giving notice for 30 days and, for repeat offences, for between 45 days and 3 months.  There are some circumstances where ... ”
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    • “ Particularly in the case of young offenders, the court will often impose a condition that your client complete a road trauma awareness course or similar education program. Completion of these courses is necessary and again, the cost is borne by the client, not the court. ”
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    • “ While re-licensing applications are usually made in person by the client, you should advise them at the outset of likely conditions that may apply. The court will not re-license an applicant if it does not receive proof of satisfactory completion of a driver education course and a licence ... ”
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    • “ Any driver or motorcycle rider whose licence and/or learner permit is cancelled due to a drink-driving offence, committed on or after 1 October 2014, will be required to install an alcohol interlock in any vehicle they operate as a condition of re-licensing, regardless of BAC reading. The length ... ”
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    • “ Two new offences were introduced from 1 August 2015: driving or being in charge of a motor vehicle with an illegal blood or breath alcohol concentration (BAC) and the presence of any illicit drug in your blood or oral fluid; and ”
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$89 AUD + GST

per month - minimum 3 month subscription

Train Your Staff Affordably

Reduce Your Practice Risks

Access on Desktop,
Phone or Tablet