Should You Make a Bail Application?

Criminal Lawyer - Bail ApplicationMaking a Bail Application

If you or a friend or loved one have been arrested and charged with criminal offences and refused bail by the Police, then you might think that the most important first step is to apply for Bail by making a Bail application to the Court.

Well, not so fast.

It may be in your interests to make an application for Bail during your first Court appearance, and depending on the circumstances you may indeed be more likely to be granted Bail by a Court.

But exercise caution before you take the step of making a Bail application.

Why is that?  Well, if you apply for Bail and do not succeed – i.e. the Magistrate denies Bail – then you cannot make another Bail application unless you can demonstrate some change of circumstances.

You May Only Get One Chance at Bail

In the past, accused persons could make as many Bail applications as they liked, and the Courts often heard a Bail application every time an accused person appeared before the Court.  Not so any more.  You need to be very circumspect when deciding to apply for Bail without putting all pertinent information before the Court in a coherent and logical fashion. If you do so, you run the risk of being locked up on remand until your matter is finalised, which could be weeks or even months away if you are defending the matter.

Of course, there is always the option of making a Supreme Court bail application if your application for bail has been refused by the Local Court. However, the current wait time between making an application to the Supreme Court and having the bail application heard by that Court is approximately 6 weeks.

Legal Aid for Bail Applications

All persons going before a Court when they are in custody are entitled to a Legal Aid Duty Lawyer who will appear for you and, if so instructed, will make a Bail application on your behalf.  Most of these Legal Aid lawyers are very competent and experienced in seeking Bail for clients. Legal Aid lawyers are sometimes slightly rushed due to high workloads, so you do need to be very careful that you give your lawyer all relevant information.

If the Legal Aid Duty Lawyer advises you not to apply for Bail because more information needs to be presented to the Court – listen, and take that advice, even if you then have to pay for a private criminal lawyer to make a considered and complete Bail application on your behalf at a later date.

Private Lawyer for Your Bail Application

If for any reason you are not confident in the Legal Aid Duty Lawyer and you would prefer to be privately represented, then Criminal Lawyers Sydney are often available at short notice to appear for you.

Call (02) 9533 2269 for advice on Bail Application representation.

Children’s Court for Under 18’s

 Children's Court ParramattaIn NSW, the Children’s Court sits in three courthouses specifically designated for the Court. These courthouses are located at Parramatta, Glebe (known as Bidura Children’s Court) and Broadmeadow.

The Children’s Court is a specialist court to deal with criminal cases, applications for apprehended violence orders, as well as other matters concerning children.

The Children’s Court also sits at courts located at Campbelltown, Port Kembla, Sutherland, Nowra, Woy Woy and Wyong on a permanent basis.

In regional and rural areas outside these locations the Children’s Court sits on a regular basis. At these locations the sittings of the Children’s Court usually coincide with the sittings of the Local Court and are conducted by Local Court Magistrates.

Children’s Magistrates

There are 13 specialist Children’s Magistrates, who are appointed for periods of up to five years. Children’s Magistrates are selected from the general pool of Magistrates appointed having regard to their knowledge, qualifications, skills and experience in dealing with children, young people and their families.

Non-Children’s Magistrates

Children’s Court cases are dealt with by Local Court Magistrates in locations where a specialist Children’s Magistrate is not available.

Serious Criminal Offences Committed by Children and Young Persons

Not all cases involving children are dealt with in the Children’s Court. Matters that are “strictly indictable” – i.e. would not be heard in the Local Court if an adult committed the offence – are not heard in the Children’s Court. The Children’s Court hears the committal proceedings initially, but the matter is then transferred to the District Court or Supreme Court, where the child or young person will be tried as an adult. The age of the offender, will, however, be taken into account as a relevant factor if the offender pleads, or is found, guilty.

Criminal Matters Heard in the Children’s Court

The Children’s Court deals with the following types of criminal cases across NSW involving children and young people:

  • Criminal cases in which the defendants were under 18 years of age at the time of the alleged offence.
  • Traffic cases where the defendant is not old enough to hold a driver’s licence or permit, or where the Children’s Court is already dealing with other related criminal offences.
  • Applications for Apprehended Violence Orders where the defendant is under 18 years of age.
  • Breaches of parole and in some cases the eligibility of children and young persons for release on parole.

How Does the Children’s Court Process Work?

When a child or young person is charged by police with an offence they are provided with a Court Attendance Notice indicating the details of the offence, the location, the date and time the case will be listed before the Children’s Court. Usually the case is listed about three weeks ahead. However, if the police have refused bail the case will be listed as soon as possible, usually the same or the next day.

On the first day the child or young person will have the opportunity to obtain legal advice about their case from the Legal Aid/Children’s Legal Services duty lawyer. If after obtaining legal advice the child or young person enters a plea of guilty the magistrate may impose a penalty on the same day. However, sometimes the magistrate will adjourn the case to obtain a background report from Juvenile Justice to assist them in determining the most appropriate penalty.

If a plea of not guilty is entered, the case will be adjourned for the police to prepare and serve a ‘brief of evidence’. This will include statements from witnesses and other material the police are going to rely on to prove that the offence has been committed by the child or young person.

If, after the evidence is served, the young person maintains his or her plea of not guilty, the court will adjourn the matter for a defended hearing where witnesses will give evidence and the magistrate will make a decision whether the child or young person is guilty or not guilty of the alleged offence.

What Types of Orders Can be Made by the Children’s Court?

If the magistrate determines that the child or young person is not guilty of the offence the case will be dismissed.

If the magistrate determines that the child or young person is guilty there are different types of penalties that can be imposed depending on the seriousness of the offence and the circumstances of the child or young person including any previous criminal record.

The types of orders that the Children’s Court can impose when a child or young person is found guilty of an offence are:

  • dismissal with or without a caution
  • caution
  • fine
  • good behaviour bond
  • probation order
  • community services order
  • control order (which may be suspended depending upon the circumstances) placing the child or young person in detention.

 

All children and young persons are entitled to representation by Legal Aid/Children’s Legal Services. There is no charge for this representation. However, if you require private representation for a criminal matter in the Children’s Court, call Criminal Lawyers Sydney on (02) 9533 2269.

 

Supreme Court of NSW

The Supreme Court is the superior court of record in the State of New South Wales.

The Court has supervisory jurisdiction over other NSW courts which hear criminal matters, and generally exercises this jurisdiction through its appellate courts.

It is the highest court in NSW, and Judges of this Court preside over only the most serious criminal trials, involving very serious types of offences.

Criminal Trials in the Supreme Court

Judges preside over criminal trials for the most serious types of offences which are heard in the Supreme Court. Such serious criminal matters include:

  • murder and manslaughter
  • attempted murder
  • major conspiracy and drug related charges
  • Commonwealth prosecutions for the more serious breaches of the Corporations Law.

Supreme Court Bail Applications

The Supreme Court can also hear bail applications in relation to cases in the Court or in other Courts (including people who have been denied bail in either the Local or District Court). On such applications, the Court will consider whether a person can be granted bail and any conditions which should be attached to it (often, although not always, the conditions may be onerous). If your loved one has been denied bail in a lower Court and wants to consider putting in a Supreme Court bail application, it is important that this application is made promptly, as the current wait to get these applications before the Court is several weeks long.

Supreme Court Appellate Jurisdiction (Appeals)

The Supreme Court has both trial and appellate jurisdictions. The appellate court for criminal matters is the Court of Criminal Appeal.

Court of Criminal Appeal

The diagram below is a simplified representation of the criminal appeal process in NSW. Actual appeal rights are, of course, determined by the various relevant legislation.

Criminal appeals - Supreme Court in context

 

Locations of the Supreme Court in Sydney

Proceedings in the Court of Appeal, the Court of Criminal Appeal, and the Common Law Division of the Supreme Court in its Criminal jurisdiction are held in any one of the following locations:

  • Law Courts Building, Queens Square, Sydney
  • St James Road Court, St James Road, Sydney
  • King Street Courthouse, Corner King and Elizabeth Streets, Sydney
  • Darlinghurst Courthouse, Taylor Square, Sydney
  • Wentworth Chambers, 180 Phillip Street, Sydney
  • Hospital Road Court Complex, Hospital Road, Sydney

The primary location is the Law Courts Building, Queens Square, Sydney.

 

This superior Court does also sit in various locations outside of Sydney, often on a “circuit” basis (i.e. visiting Judges will preside, and the Courts will be open only for a few specified weeks in each year.

 

If you have a trial or appeal in either the Supreme Court or the Court of Criminal Appeal, call us – Criminal Lawyers Sydney – on

(02) 9533 2269

.

District Court – Trials and Appeals

District Court Sydney Criminal Trials and AppealsThe District Court of New South Wales is the intermediate Court in the state’s judicial hierarchy. It is the largest trial court in Australia and has an appellate jurisdiction. It hears serious criminal offences, appeals from lower courts and civil proceedings. 

Criminal Jurisdiction

In its criminal jurisdiction, the court may deal with all criminal offences except murder, treason and piracy.

Types of Criminal Cases in the District Court

The District Court determines cases that have been committed (referred) from the Local Court or Children’s Court.  Cases are committed to the District Court for trial or for sentence.

District Court Trials

A trial is held when the accused person pleads not guilty to an indictable offence. A jury will determine the guilt or innocence of the accused (unless the accused elects to have a trial by judge alone).

Sentence Hearings

A sentence hearing is held if a person pleads guilty to an indictable offence. Sentence hearings are heard by a judge alone, with the accused and the prosecution making submissions about the sentence. Juries do not determine sentence cases.

At a sentence hearing, the court will be presented with the facts of the case, which have been agreed by the prosecution and the defence. The court may also order that a pre-sentence report be provided. Both the prosecution and defence may present other reports and evidence if they are considered appropriate. The DPP will present your previous criminal record and, in relation to certain types of offences, victim impact statements. The defence may present medical or other reports, and may also call oral evidence from the accused person or from other persons.

District Court Trial Process

The prosecution is responsible for proving beyond reasonable doubt that an accused person committed the alleged offence. The defence can choose to cross-examine the prosecution witnesses or challenge the evidence. It can also call its own evidence or witnesses.

Trial by Judge Alone

 An accused person or the prosecution can apply for the case to be tried by judge alone, instead of by jury. Application for trial by judge alone is made by notice of motion and must be made at least 28 days prior to the trial date, or with leave of the court.

What Happens During a Criminal Trial by Jury?

The following is a general overview of the steps in a criminal trial by jury:

  • Jurors are empanelled and sworn in for jury service
  • The indictment (offences) is read out the accused (this is called arraignment)
  • The accused takes a formal plea before the jury
  • The Crown (prosecutor) and the Defence open their respective cases
  • The Crown calls witnesses and the witnesses give evidence
  • The Defence calls witnesses and the witnesses give evidence
  • The Crown raises issues in reply to Defence case, and addresses the jury
  • The Defence addresses the jury
  • The judge sums up and the jury goes out to deliberate
  • The jury returns and delivers a verdict, or advises that they are unable to reach a verdict
  • If the accused is found guilty, the case is adjourned to another date for sentence
  • If found not guilty, the accused is discharged
  • If the jury is discharged without reaching verdict (known as a hung jury), the matter is relisted for trial

Verdicts, Sentencing and Judgments

Verdict

In trials by jury, the jury can return a verdict of “guilty” or “not guilty.” If the jury returns the verdict of ‘not guilty’, the defendant is acquitted and discharged from the courtroom. If the jury returns a ‘guilty’ verdict, the accused is convicted and may be sentenced either then, or at a later date determined by the court.

Sentencing and Penalties

The penalties the court can impose include good behaviour bonds, fines, community service orders, intensive correctional orders and imprisonment.

District Court Judgments

Judgments (reasons for a sentencing decision) by District Court judges may be delivered orally, or in written form. Where the Judge decides to publish the judgment it can be accessed on the NSW Caselaw website.

 

District Court Appeal Jurisdiction

The District Court can hear appeals against Local Court and Children’s Court decisions.

 

Appeals against District Court decisions go to the Court of Criminal Appeal, the Court of Appeal or the Supreme Court of NSW, depending on the type of case in question.

 

For further information, go to www.districtcourt.justice.nsw.gov.au

 

Do you have a criminal matter in the District Court? Call Criminal Lawyers Sydney on

(02) 9533 2269

 

Local Court in NSW

Local Court SutherlandThe Local Court has criminal and civil jurisdictions. In its criminal jurisdiction it deals with the majority of criminal and summary prosecutions in New South Wales.

The Local Court also conducts committal proceedings to determine whether or not indictable offences are to be committed to the District or Supreme Courts.

The Local Court also determines other applications such as Apprehended Violence Orders and appeals relating to driver’s licences.

 

There are a range of diversion programs available to Local Court Magistrates. Some are available in all Local Courts. Some are available in a very limited number of Local Court locations.

Diversion programs

In some circumstances, people facing criminal charges in court may be referred to a rehabilitation, treatment or intervention program that is intended to address underlying problems, such as:

  • drug or alcohol dependency
  • mental illness
  • homelessness
  • extreme poverty

The magistrate or judicial officer will adjourn the case while a defendant participates in the diversion program.

Other court programs provide an alternative forum for hearing a case or negotiating an outcome.

Courts with Integrated Treatment Programs

Drug Court

This specialist court offers special programs to reduce reoffending by adults who are dependent on drugs. The Drug Court of NSW is a specialist court that sits in Parramatta, Toronto and Sydney in NSW, Australia. It takes referrals from the Local and District Courts of offenders who are dependent on drugs and who are eligible for a Drug Court program. Eligibility covers a number of criteria, including where you reside and which Court is hearing your matter. The detailed eligibility requirements are here.

Visit the Drug Court website for more information.

Local Court Diversion Programs

A number of treatment and intervention referral programs are offered at the Local Court. This is a summary of the diversion programs in the Local Court.

Local Court Referral of Eligible Defendants into Treatment (CREDIT)

The CREDIT program targets adult defendants at the Local Court who want to address underlying issues related to their offending behaviour.

Those identified as at risk of re-offending undergo case management and are referred to educational, training, treatment or social welfare services. CREDIT operates at Burwood Local Court and Tamworth Local Court.

Find out more about CREDIT in the CREDIT pamphlet [PDF 1.4MB].

Magistrates Early Referral into Treatment (MERIT )

The MERIT program is available in the Local Court to give adult defendants with drug and/or alcohol problems the opportunity to undertake a voluntary rehabilitation program as part of the bail process.

People can nominate themselves for assessment by the MERIT program, or can be identified by the magistrate, their lawyer, or by police, as suitable for assessment for the MERIT program.

Visit the MERIT website for more information.

Traffic Offender Intervention Program

This program, run by the NSW Department of Roads and Maritime Services, targets offenders who have pleaded guilty or been found guilty of traffic offences in the Local Court.

The Traffic Offender Intervention program is a community-based, road safety education program. It provides offenders with the information and skills necessary to develop positive attitudes towards driving and become safer drivers.

Find out more about TOIPs.

Domestic Violence Court Intervention Model (DVCIM)

The DVCIM program operates at Wagga Wagga Local Court and Campbelltown Local Court and is an integrated criminal justice and community social welfare response to domestic violence. Where the matter is appropriate for prosecution, DVCIM provide witness preparation and ensures victim safety and support is addressed.

For more information, see the booklet Your court, your safety: a guide to going to court to get help with domestic violence [PDF 322kb].

Other Local Court Sentencing Options

Circle Sentencing

Circle Sentencing is an alternative sentencing court for adult Aboriginal offenders. It directly involves local Aboriginal people in the process of sentencing offenders, with the aims of making it more meaningful and improving confidence in the criminal justice system.

It is a process whereby a “Circle Court” is convened. The attendees sit in a circle, in a setting which is far more informal than appearing in a traditional Court. Proceedings are generally conducted in private (as compared with most Court hearings, which are open to the public).  There are 4 elders from the Aboriginal community, the project officer (basically the convener/organiser/facilitator), the Magistrate, the police prosecutor, the offender, the offender’s legal representative, the victim and possibly a few other people. Both the victim and the offender are given an opportunity to put forward their views, as are all participants. Shaming is part of the process, although the shaming is focused on the action perpetrated by the offender. The elders discuss, deliberate, and ultimately make a sentencing proposal, to which the offender must agree. Actual sentencing occurs at a later date, in Court.

Circle Sentencing is currently available in many regional towns, as well as Blacktown and Mount Druitt in the greater Sydney metropolitan area.

Find more information about Circle Sentencing on the Judicial Commission website.

Forum Sentencing

Forum Sentencing brings together an offender, the victim and other people affected by the crime. Forum Sentencing operates at selected NSW Local Courts (currently some 47 Courts) and will be extended across the state over the next few years.

It can take a lot of courage for an offender to face the people they have harmed. Similarly, it can be challenging for a victim to face the person who caused them and those around them harm.

Forum Sentencing allows both parties to:

  • see each other as human beings;
  • gain a deeper understanding of what happened and the impact it had on others; and
  • work together to find resolutions to repair the harm and help the offender get their life back on track.

To be eligible you must be an adult offender who has pleaded guilty or been found guilty of a suitable offence.  A sentence of a good behaviour bond, community service work or a term of imprisonment must be the likely possible outcomes for the offence.

Some offences commonly referred to Forum Sentencing include:

  • Common assault
  • Break and enter
  • Malicious damage
  • Domestic violence (non-intimate relationships only)
  • Theft (shoplifting, possess stolen property, steal from employer)
  • Fraud

Not all offence types are eligible for referral to Forum Sentencing. Certain serious offences or serious prior offences would make an offender ineligible for the Forum Sentencing program, such as; sexual assault, murder, stalking, firearms offences, drug supply, and some domestic violence offences.

Once a matter is referred to forum sentencing, a conference is arranged.

Conference participants will include:

  • You and people to support you, such as friends and family
  • The victim or victim representative and people who are there to support them
  • The investigating police
  • A conference facilitator
  • Others affected by the offence, such as witnesses and other relevant community members

A Draft Intervention Plan will be formulated at the conference. This is  an agreed plan of tasks for the offender to complete as part of his or her sentence. Draft Intervention Plans need to:

  • Be fair and reasonable for you to complete
  • Effectively address the issues which led to your offending behaviour
  • Include set and realistic timeframes
  • Be in writing and signed by you and the victim

The offender and the other conference participants decide what tasks should go in the Draft Intervention Plan. The Draft Intervention Plan can only be finalised once the offender and the victim agree on the tasks in the plan.

The matter will then be returned to Court where the Magistrate can accept or reject the Draft Intervention Plan, or make changes to it. The Intervention Plan, once accepted, is effectively the sentence.

Visit the Forum Sentencing website for more information.

 

 

If you have a matter in the Local Court, call us for advice and representation

Criminal Lawyers Sydney  – (02) 9533 2269.