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Pleading not guilty

Should I plead not guilty?

The court considers you innocent until proved guilty beyond a reasonable doubt.

This means the police have to give evidence to the court to prove beyond a reasonable doubt you are guilty of the offence.

You need to get legal advice to:

  • see if the circumstances of your case support a not guilty plea
  • assess the police evidence
  • work out if you have a defence.

How do I plead not guilty?

Take these steps to plead not guilty:

1. Get legal advice and prepare to plead not guilty

2. Attend court on your first mention date

  • the magistrate reads the charge
  • you or your lawyer (if you have one) hold discussions (conference) with police prosecutions
  • you plead not guilty
  • the magistrate will want to know the result of the conference
  • the magistrate sets dates for a summary callover and hearing.

3. Get a copy of the police prosecutor’s partial brief of evidence and get legal advice

  • The prosecutor should provide you with a partial brief within 14 days after the second mention of your matter.

4. Attend the committal callover

If your matter needs to be dealt with in the district or Supreme Court you will need to attend a committal callover. If you do not have the partial brief of evidence when you go to the committal callover, the prosecutor may provide you with it at court. If you would like the police to provide you with a specific statement or material (for example CCTV footage), you will need to write to them and ask them for this. If this is the case, you may ask the magistrate at the committal callover to adjourn your matter for three weeks. The prosecutor will provide you with the material within two weeks.

The police will prepare a full brief of evidence that could contain things like witness statements, video footage and medical evidence. You should write to the police prosecutor and ask for a copy of the brief of evidence at least 14 days before the next mention date.

Get legal advice if you have trouble getting a copy of the brief.

5. Attend the summary callover

If your matter is being dealt with in the magistrates court you will have to prepare for, and go to a summary callover before the hearing. This is when you tell the court you are ready to go to a hearing.

At the summary callover the magistrate will ask you if you are ready to go to a hearing. They will ask:

  • if you still want to plead not guilty. If so, your matter is listed for hearing. If you choose to plead guilty, your matter will be listed for sentence.
  • if you have had a case conference.

The magistrate will want to know:

  • the result of the conference
  • how may witnesses you have
  • what type of evidence you will be providing.

If both parties are ready to proceed, the magistrate will confirm the hearing date and may direct that any outstanding material be delivered to you.

6. Prepare for your hearing

  • Get legal advice
  • Prepare facts and evidence
  • Organise your witnesses.

7. Attend court on your hearing date

  • The prosecutor calls witnesses to give evidence against you; you may cross-examine them
  • You give your version of events and call witnesses; the prosecutor may cross-examine them
  • The magistrate decides if you are guilty or not guilty
  • If the magistrate finds you guilty, they decide your penalty.

How do I prepare for the hearing?

Here is a checklist of things you should do before the hearing.

  • Get legal advice

    You need to get legal advice once you have received a copy of the brief of evidence.

    You need to know what the police must prove in court. Get the lawyer to explain the elements of the offence the police have to prove.

    Carefully read the brief of evidence and highlight the parts you agree with and the parts you disagree with or you can show to be wrong.

  • Decide if you want to give evidence

    You need to consider this option carefully and get legal advice.

    You do not have to give evidence. You could decide to only cross-examine the police witnesses to try and raise a reasonable doubt in the magistrate's mind.

    If you decide not to give evidence, you can question the police and the police witnesses about the evidence they have provided. But you cannot then address the court and give your different version of events unless it is in evidence.

    If you want the magistrate to hear your version of events, you will have to go into the witness box or 'take the stand' and give your evidence under oath or affirmation. The police will then be able to cross-examine you.

  • Prepare facts and evidence

    Write down your version of the events and what you want to say to the magistrate — see the information the court may want to hear in the sample document information for the court(PDF, 86KB). It can help to practise in front of family or friends.

    The magistrate makes their decision based on the evidence presented during the hearing. This means you or your witness must give your evidence on the day of your hearing.

    Evidence you give to the court can be:

    • what is said by witnesses in the witness box
    • exhibits - for example, any objects, diagrams, photos, video footage, letters or other evidence a witness identifies, and you or the prosecutor ask to be submitted as evidence in the case.

    When preparing your evidence, remember:

    • If you go back to the scene of the alleged offence to take measurements and photographs, make sure you record the date and time of your visit.
    • Label any photographs on the back to explain what they relate to. Remember to ask any witnesses giving evidence if they agree with your description of the photos.
    • Witnesses can provide a sworn written statement of their evidence, but this written statement will not be enough for the court hearing. The witness must be available to go to court to be cross-examined.

    Make two copies of any documents or exhibits you want to use. You will have to give the original copies to the magistrate and the other copies are for the the police prosecutor and yourself. When you hand the exhibits to the magistrate, you say "I seek to tender this document Your Honour".

  • Organise your witnesses

    Make sure you tell your witnesses when they have to come to court.

    If they refuse to come to court you could subpoena them. This involves arranging for a subpoena called a Summons to witness. This is a document the court can issue demanding a person come to court and give evidence. It can also ask a person to produce relevant documents.

    You will need to get legal advice about how to do this. If you have to subpoena a witness it will cost money.

  • Remember you can change your plea

    You can still change your plea to guilty up to, and on the day of your hearing.

  • Be prepared for a guilty verdict

    You may be found guilty even though you are pleading not guilty.

    The magistrate might decide the police have proved the case against you beyond a reasonable doubt.

    This is why you need to think about what you would say to the magistrate about any sentence they give you if you are found guilty.

What happens at the hearing?

1. You plead not guilty

The magistrate will read the charge and ask if you plead guilty or not guilty. You plead not guilty.

The magistrate will then ask the police prosecutor to present their case against you.

Calling witnesses

Before anyone provides evidence to the court, they will be asked to swear an oath on a holy book or affirm (promise) to tell the truth. It is a crime to give false evidence.

All witnesses must wait outside until they are called. A witness can't hear another witness's evidence or the questions you ask other witnesses.

2. The police prosecutor gives their evidence

The police prosecutor will call each of the police witnesses and ask each witness questions.

Take notes about what the police witnesses say so you can remember what questions to ask when cross-examining them.

3. You question the police prosecutor's witnesses

After each police witness finishes, you have the right to cross-examine them by asking questions about the information they have given to the court.

Your aim is to show the police evidence may not be correct. Remember, the police have to prove their case 'beyond reasonable doubt'.

You need to ask questions about things you disagree with, especially if you are going to call witnesses who will give a different version of events. You need to put that version of events to the police witnesses so they can comment on it. You need to show any differences between their story and your story.

4. The police prosecutor may re-examine their witnesses

The police prosecutor can ask their witnesses more questions to clarify anything said in your cross-examination.

If the prosecutor asks a new question that is unrelated to anything raised at the start of the hearing or in cross-examination, you can object. The magistrate will then decide if the prosecutor can ask that question.

5. The police prosecutor closes their case

Once the police prosecutor has finished presenting their case against you, the magistrate will ask if you want to give evidence yourself and if you want to call any witnesses to give evidence.

"No case to answer"

If you think the prosecution have not proved their case, you can tell the magistrate there is "no case to answer". If the magistrate agrees,the case ends. If the magistrate does not agree, the trial will proceed as normal.

6. You give your version of events

If you decide to give evidence:

  • explain to the magistrate what you saw, heard or did
  • stick to the facts - don't give opinions.

When giving evidence, it is important to make sure what you say is relevant and to the point. Present your case in a business-like manner. Even though you might be upset or nervous about the situation, emotional outbursts will not help your case.

7. The police prosecutor questions you

Once you have finished giving evidence, the police prosecutor can cross-examine you.

8. You clarify your version of events

You can then have a chance to clarify after the police prosecutor has finished cross-examining you.

9. You question your witnesses

You call each of your witnesses to come before the court to answer your questions. For example you might say, "I call Jane Cherry".

Sometimes you may not have any witnesses except yourself.

You should ask your witnesses questions about what they saw, did or heard. For example:

  • "Where were you on the...."
  • "What did you see when you were...."
  • "What did you hear at the...."

The witnesses should answer in their own words. You should not ask leading questions that suggest the answer. For example, "I didn't push Joe, did I?"

10. The police prosecutor questions your witnesses

After you have finished questioning each witness, the police prosecutor will ask them questions about their evidence. This is called cross-examination.

11. You question your witnesses again

When the police prosecutor has finished their cross-examination, you can clarify any matters with your witness by asking them further questions. This is called re-examination.

12. You sum up your case

Once you and the police prosecutor have closed your cases, you each sum up your case to the magistrate. This is called making a final submission.

The aim is to highlight the parts of the evidence you believe support your case and why the magistrate should find you not guilty.

The police prosecutor will highlight the parts of the evidence supporting their case and why the magistrate should find you guilty.

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