Criminal Magistrates Court

“ Contents ”

“ Legal Aid Western Australia Western Australia Magistrates Court ”

“ 101 Subpoena Answers ”

“ It is important to take detailed instructions from the client. Taking full instructions on the simplest plea should rarely take less than half an hour. The same applies to bail applications. If there is no time to take proper instructions at the first interview, then the solicitor should make ... ”

“ If the lawyer decides to attend the police station they should present at the front counter and identify themselves as a legal practitioner – a Law Society photo I.D card is ideal, but a business card will usually suffice. The lawyer should inform the desk officer of the name of your client who is ... ”

“ Criminal matters should always be the subject of formal engagement and the client should be required to enter into a costs agreement, like any other matter. Many practitioners charge a flat fee for pleas of guilty in criminal matters. However, this does not mean that a formal costs agreement is ... ”

“ Bail can be granted by an authorised officer, usually police, or a judicial officer, usually a magistrate, although in regional areas this can often be a justice of the peace, pursuant to the power in r 11 Magistrates Court Regulations 2005. Police can grant bail in certain circumstances, where ... ”

“ Presumption in favour of bail Apart from the presumption in favour of unconditional police bail – see above - there is a general presumption in favour of bail - ss 5 and 7 and a qualified right for children to be released on bail – Schedule 1, s 2. ”

“ Lawyers need full instructions on a bail application. It is critical to be able to answer questions from the bench as to the client’s: residential address and domestic arrangements ”

“ There is effectively a presumption in favour of unconditional police bail, except for serious offences, which are defined in the Bail Act as indictable offences where the penalty is 5 years imprisonment or more. A police officer with custody of an arrested suspect is required to release them ... ”

“ All charges for all offences, regardless of seriousness, commence in the Magistrates Court. So, while such charges may be inevitably destined for trial or sentence in the higher courts and are therefore mostly beyond the scope of this guide, it is most likely that any bail application for such ... ”

“ Bail Conditions Bail can be imposed with or without conditions. Any conditions can only be in accordance with the authority granted by clause 2 (3) (c) of Part C of Schedule 1 of the Act, which relates specifically to children, and Part D of Schedule 1 of the Act, which sets out conditions which ... ”

“ Prosecution notice and material facts The lawyer needs to be able to advise the client in relation to whether they have a defence to the charge(s). It is necessary therefore to analyse the charge(s) to ascertain exactly what the prosecution has to prove against the client. ”

“ It may be appropriate to seek instructions to enter into charge negotiations in the following circumstances: to persuade the prosecution that the client will plead to a lesser charge if the more serious charge is withdrawn. This may, for example, mean the difference between the matter going to the ... ”

“ If the matter is at a Magistrates Court with which the lawyer is not familiar, or where the lawyer has not appeared for some time, then some basic preparations can save time and trouble on the day. The lawyer should find out exactly where the court is, the best way to get there, where to park ... ”

“ There are separate procedural provisions where an accused enters a written plea to an offence, which is possible in relation to simple offences, or where the accused does not attend at court on the first occasion – see Division 5 Criminal Procedure Act 2004. This guide does not deal with those ... ”

“ The first court appearance date is set when the court hearing notice or summons is issued, or else it is when the arrested accused is first brought to court after bail is refused. Bail application ”

“ By the second appearance date the lawyer needs to have confirmed their retainer, obtained necessary instructions and be ready to enter a plea of guilty or not guilty on the client’s behalf if necessary. If there are issues with the charge or the facts, they should have been raised with the ... ”

“ Plea of guilty A simple charge, or an Either Way charge staying in the Magistrate’s Court where a plea has already been entered and which was adjourned for material to be prepared for sentence hearing, or where consideration of the prosecution disclosure material – or plea negotiations – results in ... ”

“ If there is an error with the charge, or a technical flaw with the prosecution case, or one of the charges is inappropriate or unsupported on the evidence, or there are otherwise good grounds, given the client’s particular circumstances and instructions, for a charge to be withdrawn, or amended, or ... ”

“ An early plea of guilty is a very important mitigating factor on a criminal charge. Section 9AA Sentencing Act 1995 provides for sentence reduction for pleas of guilty and specifies that the earlier the plea, the greater the reduction. Note that s 9AA (4) (b) refers to when ‘…the offender pleaded ... ”

“ In many simple matters the lawyer will need to be prepared to conduct a plea at the same time as the plea of guilty is entered. In terms of being able to predict the sentencing outcome, that generally comes with experience, but less experienced practitioners should run their client’s sentencing ... ”

“ The lawyer should consider, prior to going to court, whether the magistrate is likely to require a pre-sentence report. Section 20 allows a court to order a pre-sentence report if it considers that it would be assisted by one. If it is likely an adjournment, usually about 2 weeks, will therefore be ... ”

“ It is important when conducting a plea before the Magistrates Court to be concise. Most courts are very busy, especially on list days and it is therefore important not to waffle or waste time, as it will only irritate the magistrate and an irritated magistrate isn't necessarily going to be ... ”

“ Once the matter is listed for trial, the lawyer should turn their mind to the evidence that will be needed to support the client’s case, the interviewing of any witnesses and the issuing of necessary summonses. The initial review of the matter and the formulation of the case theory should have ... ”

“ Before the trial starts It is always a good idea to speak to the prosecutor before the hearing. The lawyer can phone them from about 8.30 a.m. or see them just before court. The lawyer will want to know if all of the prosecution witnesses are available and if they are generally ready to proceed. ... ”

“ Consideration should be given, if necessary, to whether any witnesses might appear by telephone or audio-visual link. AVL is specifically permitted under section 106N Evidence Act 1906. All defence witnesses should be issued with a summons in accordance with s 161 Criminal Procedure Act 2004. The ... ”

“ Part 5 of the Act sets out the range of sentencing options that are available to the court depending upon the type of accused – natural person or corporation – and the type of statutory penalty that is prescribed for the offence: Section 39 lists the available sentences for natural persons – as to ... ”

“ For an acute general discussion of the way mental health is considered and dealt with in the Western Australian criminal justice system see the comments of Chief Justice Martin in an address titled Mental Health and the Judicial System. In that address, in 2011, His Honour noted that people with ... ”

“ The lawyer must always advise the client about their appeal rights, including the time limit. Even if the lawyer thinks the outcome should not be appealed the client needs to know their options - and the costs - as it is their decision. ”

“ Magistrates Court Review There is a limited right of review under s 184 of the Criminal Procedure Act 2004. A review is lodged by completing Form 14 Application for Review of Court Officer’s Decision. ”